DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER & ORS.

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has also been made to the Khatri Commission (1995) and Bapat A Commission (2008).

50Copy pinpoint50. It is submitted that when the Maharashtra State Commission for backward class declined to reconsider in the matter of reservation of Maratha, the State Government appointed Narayan Rane Committee who was a Minister in the State Government which submitted a report in 2014 that although Maratha Community may not be socially backward but it recommended a new Socially and Economically Backward Class (SEBC). Shri Divan has submitted that Gaikwad Commission which submitted its Report on 15.11.2018 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. It was not open for the Gaikwad Commission to ignore determination by National Commission and State Committees/Commission until June 2013 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.

51Copy pinpoint51. Coming to the Constitution (One Hundred and Second Amendment), 2018, Shri Divan submits that 102nd Constitution Amendment now contemplates identification by National Commission E of Backward Classes. The Constitutional scheme which is delineated by Article 341 and 342 has also been borrowed in Article 342A. The identification of backward classes is now centralized. Shri Divan has also highlighted adverse impact of the impugned act on medical admission in the State of Maharashtra. F

52Copy pinpoint52. Law laid down by Constitution Bench in Indra Sawhney’s case that reservation under Article 15(4) and 16(4) should not exceed the upper limit of 50 percent has been followed and reiterated by several judgments of this Court including Constitution Bench judgments. The Gaikwad Commission report and the reason given by the report does not make out any case for exception regarding Maratha Community to fall G in extraordinary circumstances as contemplated in paragraph 810 of the judgment in Indra Sawhney’s case.

53Copy pinpoint53. Shri Gopal Sankaranarayanan, learned senior Counsel has made his submission on the Constitution (One Hundred and Second H

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A Amendment), 2018. Shri Narayanan submits that after the Constitution (One Hundred and Second Amendment), 2018, the State legislature could not have passed the 2018 Act. Article 338B and 342A brought by the Constitution (One Hundred and Second Amendment), mark see change in the entire regime regarding identification of backward classes. The power of the National Commission of Backward Classes as per Article B 338B sub-clause (5) includes power to make reports and recommendations on measures that should be taken by the Union or any State. The National Commission for Backward Class is also required to be now consulted both by the Union and the State. Article 366(26) states that the phrase ‘Socially, Educationally and Backward Classes’ means such Backward Classes as are so deemed under Article 342A, for the purposes of this Constitution which provision does not permit Socially, Educationally and Backward Classes to have any other meaning. The purposes of this Constitution, as occurring in Article 366(26C) shall also apply to Article 16(4). After the Constitution (One Hundred and Second Amendment), the States have no power to identify socially, educationally and backward classes. The State Governments are still left free to decide the nature or extent of provision that may be made in favour of socially and educationally backward classes identified in accordance with Article 342A. When the power to determine SCs and STs have always been centralized, it is absurd to suggest that allowing the same procedure for identification of socially, educationally and backward classes shall violate federalism.

54Copy pinpoint54. Shri Gopal Sankaranarayanan further submitted that the reliance on Select Committee Report of Rajya Sabha is unwarranted. In the Select Committee Report which was submitted in July 2018, there were several dissents, since many members of the Select Committee understood that the Constitution (One Hundred and Second Amendment), shall take away the power of the State to prepare their own list of socially, educationally and backward classes. Article 342A has been brought in the Constitution to achieve uniformity and certainty and not due to any political reasons. There is no ambiguity in Article 342A which requires any external aid for interpretation.

55Copy pinpoint55. Shri Sidharth Bhatnagar, learned counsel appearing for the appellant also adopts the submissions of Mr. Datar and Mr. Gopal Sankaranarayanan and submits that the judgment of this Court in M.R. Balaji versus State of Mysore, AIR 1963 SC 649, had laid down that H

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reservation under Article 15(4) shall be less than 50 percent which principle finds its approval in Indra Sawhney’s Case.In Indra Sawhney’s Case, Eight out of Nine Judges took the view that reservation cannot exceed 50 percent. He submits that judgment of Indra Sawhney need not be referred to a larger Bench.

56Copy pinpoint56. Mr. Pradeep Sancheti, learned senior Advocate, has confined his submissions to the Gaikwad Commission Report. He submits that due difference to the opinion of the Commission does not mean that opinion formed is beyond the judicial scrutiny. He submits that 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.

57Copy pinpoint57. Shri Sancheti submitted that three National Backward Class Commissions and three State Backward Class Commissions did not include Maratha Community as backward community which findings and reasons could not have been given a goby by Gaikwad Commission constituted in the year 2017. The Gaikwad Commission (hereinafter referred to as Commission), survey, data results, analysis suffers from various inherent flaws. The sample survey conducted by the Commission E is skewed, unscientific and cannot be taken as a representative sample. Sample size is very small. Out of 43,629 persons surveyed, only 950 persons were from the Urban Area. Mumbai was excluded from the Survey. Sample size of total population was well below 0.02 percent. The Commission assumes that the Maratha form 30 percent of the State’s population. Without there being any quantifiable data, the Commission F picked up and chose certain parameters whereas conveniently left out many of the parameters where Maratha Community is better off. The Commission has not provided a comparable State average for at least 28 of the parameters used in the study. When the State Average is not on the record, treating those parameters as parameters of backwardness G is wholly unfounded. The High Court in the impugned judgment has also not met the submissions which were brought on record before the High Court regarding the serious flaws committed by the Commission.

58Copy pinpoint58. The marking system adopted by the Commission was not rational; the Constitution of the Commission and experts was loaded in H

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A favour of the Maratha community since the majority of the members of the Commission were all Marathas. It is submitted that Marathas are the most dominant community not only in politics but also in other fields such as educational institutions, sugar factories, agriculture etc. which aspects are relevant criteria for identifying backwardness of a community. The sample size was so small that no quantifiable data could have been found.

59Copy pinpoint59. Referring to Chapter 10 of the Commission’s report, Shri Sancheti submits that no extraordinary situation as contemplated in paragraph 810 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.

60Copy pinpoint60. Shri Sancheti submits that more than 40 percent Members of Parliament and 50 percent of Members of Legislative Assembly are E Marathas. Shri Sancheti submits that the Commission’s report is only paperwork which could not be accepted by the Court, while the Act, 2018, purports to create reservation for socially and economically Backward Classes but in effect the enactment is reservation for only Maratha which enactment is not sustainable.

61Copy pinpoint61. Shri Sancheti submits that from the various data regarding representation in jobs of Maratha community itself make it clear that Maratha community is adequately represented in Public Services and there is no Constitutional requirement for providing reservation under Article 16(4). Shri Sancheti submits that the Commission has given undue importance to the suicide by the Maratha farmers. He submits that from G the data given in the report, the proportion of suicide of Maratha comes to 23.56 percent which is even less from the proportion of 30 percent as claimed by the Commission. The High Court by wrong appreciation of facts concludes that those who committed suicide, 80.28 percent were Marathas. There is no basis to attribute farmer suicide to Maratha H Backwardness. Shri Sancheti submits that undue weightage has been

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given to the percentage of Maratha in ‘Dubbeywala class’ which cannot A be any relevant consideration.

62Copy pinpoint62. Dr. Rajeev Dhavan, appearing on behalf of the appellant, submits that no case has been made out to review or refer the judgment of this Court in Indra Sawhney’s case which is based on principles of equality and reasonableness. Dr. Dhavan submits that in fact Indra B Sawhney should be strengthened to make 50 percent strict subject to dire restrictions and stronger judicial review. The Indra Sawhney should be treated as a comprehensive decision on various aspects of reservation as a whole and the attempt of the respondents to distinguish Indra Sawhney on the basis that it was a decision only on Article 16(4) is spurious. C

63Copy pinpoint63. Dr. Dhavan, however, submits that in the judgment of Indra Sawhney, a weak test for judicial scrutiny in matters within the subjective satisfaction of the scrutiny was laid down i.e. test as laid down by this Court in Barium Chemicals ltd. and another versus The Company Law Board and others, AIR 1967 SC 295. Dr. Dhavan submits that there ought to be a strict scrutiny test and this Court may tweak this aspect of Indra Sawhney so that the strict scrutiny test applies. The 50 percent test as has been articulated in the Indra Sawhney is based on the principle of giving everyone a fair chance. 50 percent ceiling is based on principle of equality to prevent reverse discrimination which is as much a principle that the Constitution records to equality as anything else. The direction of Indra Sawhney that list of Other Backward Classes be reviewed periodically is not being followed. Dr. Dhavan, however, submits that the entire power of reservation has not been taken away from the State. F

64Copy pinpoint64. Elaborating his submissions on the Constitution (One Hundred and Second Amendment) Act, 2018, Dr. Dhavan submits that the essence of 102nd Amendment as exemplified in Article 342A results in the monopoly of identification even though implementation is left to the State. His submission is that this is contrary to the basic structure of federalism of the Constitution. In that it deprived the States of the crucial power of G identification which was a very important power of the State under Article 15, 16 and 46. The obligation of the State in Article 15, 16 and 46 continue to be comprehensive.

65Copy pinpoint65. Alternate submissions advanced by Dr. Dhavan is that Article 342A can be read down to describe the power of the Centre in relation H

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A to the Central Services and leaving the identification and implementation power of the States intact. Dr. Dhavan, however, submits that Maharashtra legislature had the competence to enact the 2018 Act, even though the Constitution (One Hundred and Second Amendment) had come by that time. He, however, submits that any legislation which is enacted will still be subject to Indra Sawhney and Nagraj principles. B

66Copy pinpoint66. Dr. Dhavan submits that various reports of Maharashtra in fact found that it is not necessary to include Maratha despite their persistent efforts. He submits that the test to be applied is “what has happened since the last report negating inclusion of Maratha that now requires a change to include them”. He submits that the logic of the principle is that if the Marathas were not backward for over Seventy years, how they have suddenly become backward now. Dr. Dhavan reiterates his submission that there is no judgment which has questioned Indra Sawhney’s case. He submits that reservation under political pressure, social pressure need not to be taken. A political obligation to the electorate is not a constitutional obligation. He further submits that object of Article 16(4) is empowerment i.e. sharing of the State power. He submits that Maratha are not deprived of sharing power; hence, no case is made out for granting reservation under Article 16(4).

67Copy pinpoint67. Shri B.H. Marlapalle, learned senior counsel, has also submitted that doctrine of extraordinary circumstances cannot be applied to a dominant class of Society. He submits that the representation of Maratha in the Legislative Assembly of the State is more than 50 percent and in the Cabinet of the State they are more than 50 percent. After enforcement of the Constitution, Marathas were never regarded as an Other Backward Community. Three Central Commission and three State F Commissions have rejected the claim of the Marathas to be backward.

68Copy pinpoint68. Shri S.B. Talekar, appearing in Civil Appeal No.3126 of 2020 has submitted that Writ Petition No.3846 of 2019 was filed by Mohd. Saeed Noori & Others, claiming reservation for Muslims. The High Court although noted the submissions but had made no consideration. Learned G Counsel contended that the State has no legislative competence to enact the 2018 Act. He submits that power to legislate on the subject has been taken away by virtue of 102nd Constitutional Amendment by adding Article 342A in the Constitution of India. He also questioned the composition of Gaikwad Commission. H

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69Copy pinpoint69. Shri R.K. Deshpande, appearing for the appellant has also A contended that by Article 342A, a separate mechanism has been introduced for the purpose of identification of backward class. He submits that there cannot be any State list of ‘Socially and Educationally Backward Class’ after the 102nd Constitutional Amendment. He submits that identification of the caste was never the exclusive domain of the States. B

70Copy pinpoint70. Shri Amit Anand Tiwari, appearing in writ petition i.e. W.P. No.504 of 2020, referring to the Order dated 09.09.2020 contends that Three-Judge Bench having refused the prayer to refer the Indra Sawhney judgment to a larger Bench, the Said prayer needs no further consideration. Shri Tiwari submits that present is not a case covered by any exceptional circumstances as mentioned in the Indra Sawhney’s C judgment. Historically, Marathas have been treated as a forward class who are socially, economically and politically well-of. Prior to the report of Gaikwad Commission, as many as six Commissions have held Marathas are not entitled to be treated as a backward class. There has been no change in the circumstances to include Maratha Community in the list of Backward Classes. With respect to 102nd Constitutional Amendment, shri Tiwari submits that now States are not empowered to notify a class of persons as socially and educationally backward for the purposes of the Constitution. However, State’s power to confer benefits on an already identified class of persons as SEBC as identified under Article 342A remains intact. The High Court committed an error in holding that States still have power to identify class as SEBC. The High Court erred in not appreciating the import of Article 366(26C).

71Copy pinpoint71. We may also notice the submission of writ petitioner in W.P.(civil) No.938 of 2020, challenging the 102 nd Constitutional Amendment Act, 2018. F

72Copy pinpoint72. Shri Amol B. Karande, learned counsel for the petitioner submits that in event Article 342A read with Article 366(26C) of the Constitution of India takes away the power of the State to identify a backward class, the said Constitutional Amendment shall be violative of basic feature of the Constitution, i.e. Federalism. G

73Copy pinpoint73. He further submits that by the Constitutional Amendment, the power of the State to legislate under various Entries under List-II and List-III have been taken away, hence, it was obligatory to follow the procedure as prescribed in Proviso to Article 368(2) of the Constitution H

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A of India, which having not done, the Constitutional Amendment is not valid.

74Copy pinpoint74. Learned Counsel submits that Article 366(26C) requires certain clarification since there is no clarity regarding Central List and State List. He submits that States shall have still power to legislate on the B identification of the backward class.

75Copy pinpoint75. Learned Attorney General, Shri K.K.Venugopal, has made submissions on the 102nd Constitutional Amendment. Shri Venugopal submits that he shall confine his arguments on the 102nd Constitutional Amendment only. Referring to Article 12 of the Constitution, the learned C Attorney General submits that the definition of the “State includes Government and Parliament of India and Government and Legislature of each State.” Under Article 15(4) and 16(4), the State has power to identify the ‘Socially and Educationally Backward Class/Backward Class’ and take affirmative action in favour of such classes which power has been regularly exercised by the State. D

76Copy pinpoint76. Learned Attorney General submits that the Constitution Bench in Indra Sawhney held that there ought to be a permanent body, in the nature of a Commission or a Tribunal to which inclusion and non-inclusion of groups, classes and Sections in the list of Other Backward Classes can be made. The Constitution Bench directed both the Union E Government and the State Government to constitute such permanent mechanism in the nature of a Commission.

77Copy pinpoint77. Learned Attorney General submits that it is inconceivable that no State shall have power to identify backward class, the direction issued by the Nine-Judge Bench still continuing. He has referred to the judgment F delivered by Justice Jeevan Reddy for himself and three other Judges and judgment delivered by Justice Thommen and submits that the above directions were the directions of the majority. Learned Attorney General submits that no such amendment has been made by which the effect of Article 15(4) and 16(4) have been impacted. He submits that National G Backward Class Commission Act, 1993 was passed in obedience of direction of this Court in Indra Sawhney’s case. He submits that Section 2(C) of 1993 Act refers to a Central list. Learned Attorney General has also referred to Maharashtra Act No.34 of 2006, especially Section 2(C), 2(E) and Section 9(1) which refers to State List. He submits that Article 342A was to cover the Central list alone, the 1993 Act, having been H

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repealed on 14.08.2018. The Attorney General has also referred to Select A Committee Report dated 17.07.2017, paragraph 12, 18, 19 and 55 and submits that Select Committee Report indicate that the intention of Constitutional Amendment was not to take away the State’s power to identify the Backward Class, the Select Committee Report clearly indicate that State’s Commission shall continue to perform their duties. B

78Copy pinpoint78. Learned Attorney General submits that Central List as contemplated under Article 342A (2) relates to employment under the Union Government, Public Sector Corporation, Central institutions in States where Central list was to be utilized. He submits that State Government identification of Backward Class/Socially and Educationally Backward Classes is not touched by Article 342A. C

79Copy pinpoint79. Referring to Scheduled Castes and Scheduled Tribes learned Attorney General submits that the power was given to the President under the Constitutional Scheme and States had no concern at all with Scheduled Castes/Scheduled Tribes. He submits that Article 342A deals with the Central List for its own purpose whereas in every State, there D is a separate State list of Other Backward Class. There was no attempt to modify Articles 15(4) and 16(4) by the Parliament. Unless Articles 15(4) and 16(4) are amended, the State’s power cannot be touched.

80Copy pinpoint80. Learned Attorney General had also referred to an affidavit filed on behalf of Government of India in Writ Petition (Civil) No.12 of E 2021, Dinesh B. versus Union of India and others, in which affidavit Union of India with respect to the Constitution (One Hundred and Second Amendment) Act, 2018 has pleaded that power to identify and specify the Socially and Educationally Backward Class list lies with Parliament, only with reference to Central List of Socially and Educationally F Backward Class. It is further pleaded that the State Government may have their separate State list for Socially and Educationally Backward Class for the purposes of providing reservation to the recruitment to State Government Services or admission to the State Government Educational Institutions. Learned Attorney General reiterates the above stand in respect of the Constitution (One Hundred and Second G Amendment) Act, 2018.

81Copy pinpoint81. Referring to the Other Backward Caste list, with regard to the State of Punjab, the learned Attorney General submits that in the Central list, there are 68 castes and whereas in the State list, there are H

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A 71 castes. Learned Attorney General submits that the question of validity of the Constitution (One Hundred and Second Amendment) shall arise only when the State’s power is taken away. Replying to the submissions made by the learned counsel for the writ petitioner in W.P.No.938 of 2020, learned Attorney General submits that in the Constitution (One Hundred and Second Amendment), there was no applicability of proviso to Article 368(2). He submits that insofar as legislation under List-III is concerned, since Parliament by legislation can override the States, hence, by Constitutional Amendment, the same can very well be taken away.

82Copy pinpoint82. Referring to Entry number 41 of List-II, the learned Attorney General submits that Entry 41 has no concern with identification of backward class. The Constitution (One Hundred and Second Amendment) does not amend the lists under Schedule VII; hence, there is no requirement of ratification by the States.

83Copy pinpoint83. Shri Mukul Rohtagi, learned senior counsel, appearing for the State of Maharashtra has led the arguments. Shri Rohtagi has articulated his submissions in a very effective manner. Shri Rohtagi states that his submission shall be principally confined to question No.1.

84Copy pinpoint84. Shri Rohtagi submits that there are several reasons which require that the Constitution Bench judgment in Indra Sawhney be revisited, necessitating reference to the larger Bench of Eleven Judges. E Shri Rohtagi during course of submission has handed over a chart giving history of judgments on reservation. The chart makes reference of the relevant paragraphs of judgments of this Court in M.R.Balaji versus State of Mysore(Supra),T. Devadasan versus Union of India and another, AIR (1964) SC 179, State of Punjab versus Hiralal and F others, (1970) 3 SCC 567; State of Kerala and others versus N.M. Thomas and others, (1976) 2 SCC 310; Akhil Bharatiya Soshit Karamchari Sangh, (Railway) versus Union of India and others, (1981) 1 SCC 246; K.C. Vasant Kumar and another versus State of Karnataka, (1985) supp. (1) SCC 714; T.M.A. Pai Foundation and others versus State of Karnataka and others, (2002) 8 SCC 481, M. G Nagaraj and others versus Union of India and others, (2006) 8 SCC 212; S.V.Joshi versus State of Karnataka, (2012) 7 SCC 41; Union of India and others versus Rakesh Kumar and others, (2010) 4 SCC 50; K. Krishnamurthy and others versus Union of India and another ,(2010) 7 SCC 202; Chebrolu Leela Prasad Rao versus State of Andhra Pradesh, (2020) SCC Online SC 383; Vikas H

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kishanrao Gawali versus The State of Maharashtra, (2021) SCC A Online SC 170 and Constitution Bench judgment of this Court in Indra Sawhney. The Chart also indicates the reasons why Indra Sawhney’s judgment requires a review. The Chart in a comprehensive manner discloses the law on reservation prior to Indra Sawhney and subsequent thereto. B

85Copy pinpoint85. We may now notice the Groundswhich have been emphasized by Shri Mukul Rohtagi for referring the judgment of Indra Sawhney to a larger Bench. (5)The 10 grounds urged for referring Indra Sawhney judgment to a larger Bench. C i) In the judgment of Indra Sawhney, there is no unanimity, in view of different reasoning adopted in six separate judgments delivered in the case. He submits that the judgments are in three groups – one containing the judgment of Justice Jeevan Reddy, which is for himself and three other judges, which held that while 50 percent is the rule D but in certain extraordinary situations, it can be breached. Shri Rohtagi submits that Justice Pandian and Justice Sawant have held that 50 percent can be breached, hence, the majority opinion is that 50 percent can be breached. It is only Justice Thommen, Justice Kuldip Singh and Justice E R.M. Sahai who have held that 50 percent cannot be breached. He submits that the judgment of majority opinion in Indra Sawhney is being wrongly read as holding that 50 percent is the ceiling limit for reservation. ii) Different judges from 1963 till date have spoken in different voice with regard to reservation under 15(4) and 16(4) which is a good ground to refer Indra Sawhney judgment to a larger Bench. iii) The Balaji has held that Article 15(4) is an exception to Article 15(1) which theory has not been accepted by this Court in N.M. Thomas as well as Indra Sawhney, the very basis of fixing the ceiling of 50 percent has gone. Shri Rohtagi submits that the Constitution of India is a living document. The ideas cannot remain frozen, even the thinking of framers of the Constitution cannot remain frozen for times immemorial. H

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A iv) Neither Article 16(4) nor Article 15(4) contains any percentage. The Court cannot read a percentage i.e. 50 percent for effecting reservation under Article 15(4) and Article 16(4), providing a ceiling by number is cutting down the Constitutional provisions of Part-III and Part-IV. Indra Sawhney’s judgment has restricted the sweep of Article B 15 and Article 16 of the Constitution. The Constitutional provisions cannot be read down which principle is applicable only with regard to statutes. v) Judgment of Indra Sawhney is a judgment on Article 16(4) and not on Article 15(4), hence, the ratio of judgment cannot C be applied with regard to Article 15(4). He submits that Indra Sawhney itself states that Article 15(4) and Article 16(4) are distinct and different provisions. vi) The judgment of Indra Sawhney does not consider the impact of Directive Principles of State Policy such as Article D 39(b)(c) and Article 46, While interpreting Article 14, 16(1) and 16(4). vii) The 50 percentage ceiling limit was followed by Constitution Bench of this Court in St. Stephen’s College versus University of Delhi,(1992) 1 SCC 558, by upholding the procedure for admission of students in aided minority educational institutions which ceiling limit of 50 percent has been set aside by 11-Judge Bench judgment in T.M.A. Pai Foundation (Supra). 11-Judge Bench judgment in T.M.A. Pai judgment indicates that the ceiling of 50 percent is no longer available to be relied on even for purposes of Article 15 and Article 16. viii) The Constitutional 77th and 81st Amendment Act inserting Article 16(4)(A) and Article 16(4)(B) have the effect of undoing in part the judgment of Indra Sawhney and thus mandating a re-look. ix) The 103rd Constitutional Amendment by which 10 percent reservation have been provided for Economically Weaker Sections in addition to reservation given under Article 15(4) and Article 16(4) is a clear pointer of overruling of 50 percent ceiling for reservation under 15(4) and 16(4). H

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x) The extraordinary circumstances as indicated in paragraph A 810 of Indra Sawhney’s case is not exhaustive, far flung and remote areas mentioned therein are only illustrative. There may be other exceptions where states are entitled to exceed the 50 percent ceiling limit.

86Copy pinpoint86. Shri P.S. Patwalia, appearing for the State of Maharashtra B has advanced the submissions on rest of the questions. Shri Patwalia has advanced submissions supporting the report of Gaikwad Commission. He submits that Gaikwad Commission was appointed under the 2005 Act at the time when the challenge to 2014 Act was pending in the Bombay High Court. He submits that there was no challenge to the constitution of Gaikwad Commission before the High Court at any stage. C He submits that if 30 percent Maratha are to be fit in 27 percent OBC reservation, we will be giving them a complete mirage. Shri Patwalia has taken us to the different chapters of the report and submits that the Commission has mentioned about procedure, investigations and evidence collected. He submits that quantifiable data was collected by the D Commission through experts and three agencies appointed by the Commission. Experts were also engaged to marshal the data and submit their opinion. Chapter 10 of the report dealt with the exceptional circumstances regarding Marathas justifying exceeding 50 percent ceiling limit for reservation. He submits that the Commission has assessed the Maratha population as 30 percent. E

87Copy pinpoint87. Shri Patwalia submits that the scope of judicial review of a Commission’s report is very limited. This Court shall not enter into assessment of evidence to come to a different conclusion. He submits that the Gaikwad Commission report is a unanimous report. After the receipt of the report, the Act, 2018 was passed unanimously by the F Legislative Assembly. The subjective satisfaction of the State Government to declare a community as socially and educationally backward is not to be easily interfered by the Courts in exercise of Judicial Review Jurisdiction.

88Copy pinpoint88. On the basis of the Commission’s report, the State Government G arrived at the satisfaction that Maratha are socially and educationally backward class which satisfaction need not be tested in Judicial Review Jurisdiction. Formation of the opinion by the State is purely a subjective process. This Court has laid down in several judgments that the Commission’s report needs to be treated with deference. The High Court H

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A in the impugned judgment has elaborately considered the Gaikwad Commission’s report and the other material including the reservation which was granted to Other Backward Community in the year 1902 by Sahuji Maharaj. He submits that the High Court had considered the effect of reports given by the earlier Commissions in the impugned judgment and gave reasons why earlier reports cannot operate detriment to the Marathas.

89Copy pinpoint89. It is submitted that method and manner of survey is to be decided on by the Commission. No contrary data of any expert or technical body has been placed before this Court by the appellants to come to the conclusion that the data considered by the Commission was not relevant. The choice of parameters is essentially to be decided by the expert body appointed to determine the backwardness. The statistics of population of Maratha community is credible and rightly been accepted by the Commission.

90Copy pinpoint90. The Commission had given a common questionnaire to maintain uniformity for social, economical and educational backwardness. The Commission has given relevant parameters. The Commission had considered the number of representations received and collected. The Commission also considered the objection for inclusion of Maratha as backward class in Other Backward classes category and otherwise.

91Copy pinpoint91. Shri Patwalia with respect to 102nd Constitutional Amendment states that he adopts the submissions of learned Attorney General completely. He submits that Article 342A and mechanism which has been brought in force only relate to the Central list which is for the purposes of appointment in posts under the Central Government or F Educational Institutions under the control of the Central Government. Shri Patwalia further submits that the Select Committee report relied by the High Court is fully admissible for deciphering the history of legislation and the intention of the Parliament. He further submits that today there is no central list, hence, there is no question of affecting the State list. He submits that it is premature to set aside the said action. G

92Copy pinpoint92. Shri Shekhar Naphade, learned senior counsel, appearing for the State of Maharashtra, has elaborately dealt with the judgment of this Court in M. R. Balaji(Supra). He submits that all subsequent judgments providing a ceiling of 50 percent are based on Balaji’s Case and there being several flaws in the said judgment, the case needs to be referred H to larger Bench. He submits that 50 percent ceiling on reservation for

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Scheduled Caste, Scheduled Tribes and Other Backward Class is a judicial A legislation which is impermissible. He further submits that reservation cannot exceed 50 percent is not the ratio of judgment of Balaji. It is submitted that Balaji has not considered the effect of the non obstante clause contained in Article 15(4). Shri Naphade has also dealt with the judgments of this Court in T.Devadasan(Supra), N.M. Thomas (Supra) B and Indra Sawhney.

93Copy pinpoint93. Shri Naphade elaborating his submissions on Article 342A submits that the State has legislative competence to prescribe reservation to backward class. He has referred to Entry 25 of List-III and Entry 41 of List-II. He submits that a careful perusal of Article 342A indicates that the scheme of this Article is substantially different from Article 341 C and 342. The difference in the language of clause (2) of Article 342A as compared to clause (2) of Article of 341 and 342 makes all the difference. The view canvas by petitioners that 102nd Constitutional Amendment takes away the legislative competence and legislative power of the States runs counter to the basic structure of the Constitution and the scheme of D distribution of power between the State and Centre. It is settled principle of interpretation that by construing any provision of Act of Parliament or Constitution, the legislative history of the relevant subject is necessary to be seen.

94Copy pinpoint94. Shri Kapil Sibal, senior advocate, appearing for the State of E Jharkhand has advanced the submissions on all aspects of the matters which are under consideration in the present batch of cases. He submits that how balance for Article 14, 15 and 16 shall be maintained is matter within the domain of the executive/State legislature. No Court should fix the percentage for Article 15 and 16. In Indra Sawhney’s case, there was no data for imposing a ceiling of 50 percent. Justice Jeevan Reddy F did not rely on the Mandal Commission’s report. Mr. Sibal submits that 50 percent was not an issue in the Indra Sawhney. He submits that parameters for Article 15(4) and Article 16(4) are entirely different where Article 15 is eligibility and Article 16 is ability to get a job. Apart from Balaji, all other judgments are on Article 16. He submits that question G No.VI framed in Indra Sawhney’s case could not have been answered without looking into the statistics. The concept of equality will differ from State to State. There cannot be a strait Jacket formula. Why stop reservation to only 50 percent when matter relates to affirmative action by the State which is felt required by the concerned State. Limiting H

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A access to education to 50 percent will cause more problems than solved. It is the State which has to look at the relevant percentage to be followed in a particular case. In Indra Sawhney’s case, the Court was dealing with Office Memorandum issued by Government of India where reservation was less than 50 percent. The observation regarding 50 percent is only an Obiter. By the judgment of this Court in N.M. Thomas, B the basis of Balaji Case that Article 15(4) is an exception to Article 15(1) has gone. The whole judgment could not be relied on as a precedent anymore. Whether a particular quota of reservation is violative of Article 15(1) depends on facts of each case. The State ought to be given a free hand to pick the percentage as per need and requirement of each State. C There is no judicial power to pick a percentage.

95Copy pinpoint95. Shri Sibal giving illustration of Kendriya Vidyalaya submitted that General students cannot come and those institutions cater only to the employees of Government, Army; and the General can only come when the seats are vacant. He submits that the balance has to be done D by the executive and not by the Court. These are the issues which need to be decided by a larger Bench. These issues having never been addressed before this Court in Indra Sawhney’s case, the matter needs to be referred to a larger Bench.

96Copy pinpoint96. The Constitution of India is a living, transformative document. E The Court cannot shackle the legislature. Shri Sibal submits that 50 percent limit for reservation prescribed in Indra Sawhney is no longer a good law after 103rd Constitutional Amendment which inserted Article 15(6) and Article 16(6) into the Constitution. Several States have already provided for reservation beyond 50 percent to Scheduled Caste, Scheduled Tribe and Socially and Educationally Backward class. In the above circumstances, it is necessary that these matters may be referred to a larger Bench for fresh adjudication.

97Copy pinpoint97. Shri Sibal on Article 342A submits that under Articles 15(4) and 16(4) the Union and the States have co-equal powers to advance the interest of socially and educationally backward classes. Any exercise of power by the Union cannot encroach upon the power of the State to identify and empower the socially and educationally backward classes and determine the extent of reservation required. The expression, “for the purposes of this Constitution” can therefore only be construed within the contours of power that the Union is entitled to exercise with respect H

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to entities, institutions, authorities and Public Sector Enterprises under the aegis and control of the Union.

98Copy pinpoint98. The expression “Central List” in Article 342A(2) relates to the notification under Article 342A(1), wherein the Central List will include identification of socially and educationally backward classes for the purposes of entities, institutions, authorities and public sector enterprises in a State, but under the aegis or control of the Union. Any other interpretation would allow an executive act to whittle down the legislative power of the States to provide for the advancement of the socially and educationally backward classes, under Articles 15(4), 15(5) as well as in Article 16(4), which are an integral part of the chapter on fundamental rights. C

99Copy pinpoint99. Article 342A and Article 342A(1) and 342A(2) must be interpreted in the historical context and developments both pre and post Indra Sawhney, where the identification of the socially and educationally backward classes in the State lists was the basis for determining the extent of reservations. In this regard, the use of the word “Central list” D is of significance, as opposed to Articles 341 and 342, which only use the expression “list” in the context of identification of Scheduled Castes and Scheduled Tribes. This is because historically, Scheduled Castes and Tribes were identified by the Government of India and accepted by the States. E

100Copy pinpoint100. Learned Solicitor General Shri Tushar Mehta, submits that he adopts the submissions made by learned Attorney General. He submits that 102ndConstitutional Amendment shall not dilute the power of the State. Article 342A (1) is only enabling provision. The Act, 2018, does not violate 102ndConstitutional Amendment. F

101Copy pinpoint101. Dr. Abhishek Manu Singhvi, appearing for the respondent submits that State’s power was never intended to be taken away. He submits that material including discussion in reports of Parliamentary Committee are fully admissible and has to be relied for finding the intent and purpose of a Constitutional provision. Dr. Singhvi has elaborately G taken us to the proceedings of the Select Committee and its report. Dr. Singhvi has cited the Constitution Bench judgment of this Court in Kalpana Mehta and others versus Union of India and others, (2018) 7 SCC 1.He has also referred to the Statements of objects of 123rdBill which notices that there were State lists prior to Indra Sawhney. The Central list was confined to Central Institutions and Central Government H

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A posts. Shri Singhvi has also referred to 1993 Act and submits that in the said Act Section 2(C) referred to a list which was only a Central list. Article 342A(2) uses the same Central list and interpretation of Article 342A(2) has to be made taking the same meaning of Central list as was known and understood under the regime prior to 102 nd Constitutional Amendment Act. This Court shall not annotate the State’s power under B some interpretive exercise. Dr. Singhvi further submits that today there is no Central list under Article 342A, there being no occupied field, it its premature and academic.

102Copy pinpoint102. Shri C.U. Singh, learned senior Advocate, appearing for respondents has referred to Gaikwad Commission’s report in detail. He C has referred to data collected and reflected in the report and submit that the Commission on the basis of quantifiable data has determined Maratha as socially and educationally backward community. He has also referred to Chapter 10 of the report which carves out exceptional circumstances for exceeding 50 percent limit. Shri C.U. Singh has taken the Court to D various tables and charts regarding representation of Maratha Community in the Public services, Universities and Higher Institutions. Shri C.U. Singh submits that the representation in the public services is not in accordance with the proportion of population of Maratha. He submits that backwardness has to come from living standard, job. The Commission has found that Marathas to be more in Agriculture and in Agricultural E labour. He submits that we need to take into consideration the overall situation.

103Copy pinpoint103. Learned Counsel for the State of Bihar, State of Punjab, State of Rajasthan, State of Andhra Pradesh, State of Tamil Nadu, State of Kerala, State of Assam, State of Uttar Pradesh, State of Haryana F have also advanced the similar submissions as advanced by the State of Maharashtra that 102nd Constitutional Amendment shall not take away power of the legislative/executive power of the State to identify OBC and to take measures for implementation of reservation. All State’s counsel submitted that there has always been two lists i.e. Central List G and State List. It is submitted that any other interpretation shall violate the federal structure as envisaged in the Constitution of India.

104Copy pinpoint104. Shri Amit Kumar, learned Advocate General, Meghalaya, submits that in State of Meghalaya there are about 85.9 percent tribal population. He submits that reservation allowed in State of Meghalaya H is in accord with paragraph 810 of the Indra Sawhney’s judgment.

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105Copy pinpoint105. Shri Vinay Arora, learned counsel appearing for State of A Uttarakhand, submits that State has two lists one drawn by State and another Central list. He adopts the arguments of learned Attorney General. Shri Vinay Arora submits that judgment of Indra Sawhney need not to be referred to a larger Bench. He submits that affirmative action under Articles 16(4) and 15(4) are facets of Article 14. B

106Copy pinpoint106. We have also heard various counsel appearing for interveners. Most of the interveners have adopted the submissions of the State of Maharashtra. However, learned counsel Shri A.P.Singh and Shri B.B. Biju, appearing for different interveners submits that judgment of Indra Sawhney need not be referred to larger Bench. They submitted that C after seventy years, there has been upliftment. The reservation is affecting the merit as well as the society.

107Copy pinpoint107. We have heard learned counsel for the parties and perused the records.

108Copy pinpoint108. All the relevant materials which were before the High Court D have been compiled in different volumes and filed for convenience. Learned counsel for the parties during submissions have referred various materials including necessary relevant enactments and reports. From various volumes a master index containing all details of volumes has also been prepared and submitted. Before we enter into submissions of E the learned counsel for the parties on six questions framed by us and the impugned judgment of the High Court including points for consideration noted in the judgment of the High Court, we need to first look into the statutory provisions pertaining to reservation in force at the time when Act, 2018 was enacted. F (6)The status of Reservation at the time of commencement of Enactment of Act, 2018

109Copy pinpoint109. The State of Maharashtra has issued a unified list of OBC consisting of 118 castes on 13.08.1967. On 10.09.1993 after the judgment G of this Court in Indra Sawhney case, the Central List of OBC was issued by the Ministry of Welfare, Government of India notifying the Central List of OBC consisting of more than 200 castes. The Central List of OBC as on date contains about 252 OBC. The Government of Maharashtra by its Government decision dated 07.12.1994 created H

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A special backward category containing several castes and communities. The Maharashtra State Public Services Reservation for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and other Backward Classes) Act, 2001 was enacted which was published in the Maharashtra Government Gazette on 22.01.2004. Section 2(b) defines De-notified Tribes. Section B 2(f) defines Nomadic Tribes. Section 2(g) defines Other Backward Classes and Section 2(k) defines reservation and Section 2(m) defines Special Backward Category. Sections 2(b), 2(f), 2(g), 2(k) and 2(m) are as follows:

C “Section 2(b) “ De-notified Tribes (Vimukta Jatis) “ means the Tribes declared as such by the Government from time to time; 2(f) “Nomadic Tribes “ means the Tribes wandering from place to place in search of their livelihood as declared by Government from time to time ; D 2(g) “Other Backward Classes” means any socially and educationally backward classes of citizens as declared by the Government and includes Other Backward Classes declared by the Government of India in relation to the State of Maharashtra ; 2(k) “reservation” means the reservation of post in the services for the members of Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes; 2(m) “Special Backward Category” means socially and educationally backward classes of citizens declared as a Special Backward Category by the Government.”

110Copy pinpoint110. Section 4 provides for reservation and percentage. Section 4(2) is as follows: Section 4(2) Subject to other provisions of this Act, there shall be posts reserved for the persons belonging to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes, at the stage of direct recruitment in public services and posts specified under clause (j) of section 2, as provided below:-

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______________________________________________ A Description of Caste/Tribe/ Percentage of Category/Class vacancies reservation Or seats to be reserved ______________________________________________ B (1) Scheduled Castes .. 13 per cent. (2) Scheduled Tribes .. 7 per cent. (3) De-notified Tribes (A) .. 3 per cent. (4) Nomadic Tribes (B) .. 2.5 per cent. C (5) Nomadic Tribes (C) .. 3.5 per cent. (6) Nomadic Tribes (D) .. 2 per cent. (7) Special Backward Category .. 2 per cent. (8) Other Backward Classes .. 19 per cent. D _____________ Total .. 52 per cent. _____________________________________________” E

111Copy pinpoint111. The Maharashtra State Commission for Backward Classes Act, 2005 was enacted by the State Legislature providing for constitution of State level Commission for Backward Classes other than the Scheduled Castes and Scheduled Tribes and to provide for matters connected therewith or incidental thereto. Section 2(e) defined the Lists in following words: F “Section 2(e) “Lists” means the Lists prepared by the State Government, from time to time, for the purposes of making provision for the reservation of appointments or posts, in favour of the backward classes of citizens who, in the opinion of the State Government, are not adequately represented in the services G under the State Government and any local or other authority within the State or under the control of the State Government;”

112Copy pinpoint112. Section 9 of the Act deals with functions of the Commission in the following words: H

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A “Section 9.(1) It shall be the function of the Commission,— (a) to entertain and examine requests for inclusion of any class of citizens as a backward class in the Lists ; (b) to entertain, hear, enquire and examine complaints of over-inclusion or under-inclusion of any backward class in B such Lists and tender such advice to the State Government as it deems appropriate; (c) to take periodical review and make recommendations to the State Government regarding the criteria and methodology of determining the backward class of citizens ; C (d) to cause studies to be conducted on a regular basis through and in collaboration with reputed academic and research bodies for building of data about the changing socio-economic status of various classes of citizens;

D (e) to regularly review the socio-economic progress of the backward class of citizens ; and (f ) to perform such other functions as may be prescribed. (2) The advice given or recommendations made by the Commission under this section shall ordinarily be binding on the State Government and the State Government shall record reasons in E writing, if, it totally or partially rejects the advice or recommendations or modifies it.”

113Copy pinpoint113. Another Enactment, namely, Maharashtra Private Professional Educational Institutions (Reservation of seats for admission for Scheduled Castes, Scheduled Tribes, De-notified Tribes(Vimukta Jatis), Nomadic F Tribes and Other Backward Classes) Act, 2006 was enacted which was published in Maharashtra Gazette on 01.08.2006. Section 2 defines various expressions including Nomadic Tribes and Other Backward Classes in other words. Section 4 provided that in every Aided Private Professional Educational Institution, seats equal to 50% shall be reserved for candidates belonging to the Reserved Category. Section 4 of the Act is as follows: “Section 4. (1) In every Aided Private Professional Educational Institution, seats equal to fifty per cent. of the Sanctioned Intake of each Professional Course shall be reserved for candidates belonging to the Reserved Category.

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(2) The seats reserved for candidates belonging to the Reserved A Category under sub-section (1) shall be filled in by admitting candidates belonging to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes, respectively, in the proportion specified in the Table below :– B __________________________________________________ Description of Caste/Tribe/ Percentage of Category/Class of Reserved reservation Category C __________________________________________________ (1) Scheduled Castes and Scheduled 13% Castes converts to Buddhism (2) Scheduled Tribes 7% D (3) De-notified Tribes(A) 3% (4) Nomadic Tribes(B) 2.5% (5) Nomadic Tribes(C) 3.5% (6) Nomadic Tribes(D) 2% E (7) Other Backward Classes 19% _______________ Total 50% ________________________________________________” F

114Copy pinpoint114. As noted above, at the time of enactments of above 2001 and 2006 Acts, list containing Other Backward Classes had been existing which was issued by the State Government from time to time. By GR dated 26.09.2008, the State of Maharashtra extended the list of OBC to include 346 castes. We have already noticed that the Maharashtra G 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 was enacted by the State Legislature which received the assent of the Governor on 09.01.2015. In the said Act Maratha community was H

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A declared as Educationally and Socially Backward Category (ESBC). The implementation of the Act was stayed by the High Court by its order dated 07.04.2015 passed in Writ Petition No.3151 of 2014 which continued in operation till the writ petition was dismissed as infructuous by the impugned judgment. From the Acts 2001 and 2006 as noted above, it is clear that the percentage of reservation in the State of Maharashtra B in Public Services was 52% whereas percentage of reservation of seats for admission for SC and ST, De-notified Tribes and Nomadic Tribes and Other Backward Classes in Private Professional Educational Institutions was 50% at the time of enactment of Act, 2018. We may also notice certain relevant provisions of Act LXII of 2018. The Preamble C of the Act reads: “An Act to provide for reservation of seats for admission in educational institutions in the State and for reservation of posts for appointments in public services and posts under the State, to Socially and Educationally Backward Classes of Citizens (SEBC) D in the State of Maharashtra for their advancement and for matters connected therewith or incidental thereto. WHEREAS it is expedient to provide for reservation of seats for admission in educational institutions in the State and for reservation of posts for appointments in public services and posts under the E State to Socially and Educationally Backward Classes of Citizens (SEBC) in the State of Maharashtra for their advancement and for matters connected therewith or incidental thereto ; it is hereby enacted in the Sixty-ninth Year of the Republic of India, as follows:—”

115Copy pinpoint115. Section 2(1)(j) provides that Socially and Educationally Backward Classes of Citizens (SEBC) includes the Maratha community. Section 2(1)(j) is as follows: “2(1)(j) “Socially and Educationally Backward Classes of Citizens (SEBC)” includes the Maratha Community declared to be G Educationally and Socially Backward Category (ESBC)in pursuance of 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.” H

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116Copy pinpoint116. Section 3 provides for applicability to all the direct A recruitments, appointments made in public services and posts in the State which is as follows: “3. (1) This Act shall apply to all the direct recruitments, appointments made in public services and posts in the State except,— B (a) the super specialized posts in Medical, Technical and Educational field ; (b) the posts to be filled by transfer or deputation ; (c) the temporary appointments of less than forty-five days duration ; and (d) the post which is single (isolated) in any cadre or grade. (2) This Act shall also apply, for admission in educational institutions including private educational institutions, whether aided or un-aided by the State, other than the minority educational institutions referred to in clause (1) of article 30 of the Constitution of India. (3) The State Government shall, while entering into or renewing an agreement with any educational institution or any establishment for the grant of any aid as provided in the explanation to clauses (d) and (e) of section 2, respectively, incorporate a condition for compliance with the provisions of this Act, by such educational institution or establishment. (4) For the removal of doubts it is hereby declared that nothing in this Act shall affect the reservation provided to the Other Backward Classes under the Maharashtra State Public Services (Reservation F for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes) Act, 2001 and the Maharashtra Private Professional Educational Institutions (Reservation of seats for admission for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward G Classes) Act, 2006.”

117Copy pinpoint117. Section 4 deals with seats for admission in educational institutions and appointments in public services and posts under the State or SEBC. Section 4 is as follows: H

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A “4. (1) Notwithstanding anything contained in any judgment, decree or order of any Court or other authority, and subject to the other provisions of this Act,— (a) sixteen per cent. of the total seats in educational institutions including private educational institutions, whether aided or un- B aided by the State, other than minority educational institutions referred to in clause (1) of article 30 of the Constitution of India ; and (b) sixteen per cent. of the total appointments in direct recruitment in public services and posts under the State, shall be separately reserved for the Socially and Educationally Backward Classes (SEBC) including the Maratha Community: Provided that, the above reservation shall not be applicable to the posts reserved in favour of the 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. (2) The principle of Creamy Layer shall be applicable for the purposes of reservation to the Socially and Educationally Backward Classes (SEBC) under this Act and reservation under this Act shall be available only to those persons who are below Creamy Layer. Explanation.—For the purposes of this sub-section, the expression “Creamy Layer” means the person falling in the category of Creamy Layer as declared by the Government in the F Social Justice and Special Assistance Department, by general or special orders issued in this behalf, from time to time.”

118Copy pinpoint118. We have already noticed that in the writ petitions filed before the High Court, Act, 2018 was challenged being invalid and violative of the provisions of the Constitution of India. G (7) Consideration of 10 Grounds urged for revisiting and referring the judgment of Indra Sawhney to a larger Bench.

119Copy pinpoint119. Shri Mukul Rohtagi as well as Shri Kapil Sibal, learned senior counsel have submitted that judgment of Indra Sawhney needs to be revisited and refer to a larger Bench of eleven Judges. H

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120Copy pinpoint120. We shall proceed to consider the grounds given by Shri Mukul A Rohtagi in seriatim which shall also cover the grounds raised by Shri Sibal.

121Copy pinpoint121. First ground of Shri Rohatgi is that it is only three Judges, Justice T.K. Thommen, Justice Kuldip Singh and Justice R.M. Sahai who held that 50% reservation cannot be breached whereas other six B Judges have held that 50% can be breached, hence, majority opinion in Indra Sawhney does not hold that 50% is the ceiling limit for reservation. For considering the above submission we need to notice the opinion expressed in each of the six judgments delivered in Indra Sawhney’s case.

122Copy pinpoint122. Before we proceed to notice the relevant paragraphs of the judgment of Indra Sawhney, we need to first notice method of culling out the majority opinion expressed in a judgment where more than one judgments have been delivered. The Constitution Bench of this Court in Rajnarain Singh vs. Chairman, Patna Administration Committee, Patna and another, AIR 1954 SC 569, had occasion to find out the majority opinion of a seven-Judge Bench judgment delivered by this Court in Re Delhi Laws Act, 1912, Ajmer-Merwara (Extension of Laws)Act, 1947 vs. Part ‘C’ States(Laws) Act, 1950, AIR 1951 SC 332. The Constitution Bench laid down that opinion which embodies the greatest common measures of the agreement among the Bench is to be accepted the decision of the Court. Thus, for culling out the decision of the Court in a case where there are several opinions, on which there is greatest common measure of agreement is the decision of the Court.

123Copy pinpoint123. We now revert back to the judgment of Indra Sawhney to find out what is the greatest common measures of the agreement between the Judges with regard to the reservation to the extent of 50%. Justice B.P. Jeevan Reddy for himself, M.H. Kania, CJ, M.N.Venkatachaliah, A.M. Ahmadi, JJ., has elaborately dealt with the extent of the reservation under Article 16(4). In paragraph 809 conclusion was recorded by the Court that reservations contemplated under Article 16(4) should not exceed 50%. In paragraph 810 it was observed that in certain extra- ordinary circumstances, some relaxation in this strict rule of 50% may become imperative. Paragraphs 809 and 810 are to 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%. H

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A 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.”

124Copy pinpoint124. Justice S. Ratnavel Pandian while delivering a separate judgment has expressed his disagreement with the proposition of fixing the reservation for socially and educationally backward classes at 50% as a maximum limit. In paragraph 243(9) following was laid down by Justice Pandian: “243(9) No maximum ceiling of reservation can be fixed under Article 16(4) of the Constitution for reservation of appointments or posts in favour of any backward class of citizens “in the services under the State”. The decisions fixing the percentage of reservation only up to the maximum of 50% are unsustainable.”

125Copy pinpoint125. Justice Thommen, Justice Kuldip Singh and Justice R.M. Sahai took the view that reservation in all cases should remain below E 50% of total number of seats. Paragraph 323(8) of Justice Thommen’s opinion is as follows: “323(8) Reservation in all cases must be confined to a minority of available posts or seats so as not to unduly sacrifice merits. The number of seats or posts reserved under Article 15 or Article 16 F must at all times remain well below 50% of the total number of seats or posts.”

126Copy pinpoint126. Justice Kuldip Singh also in paragraph 384(i) expressed his opinion in accord with Justice R.M. Sahai which is as follows: “384(i) that the reservations under Article 16(4) must remain below G 50% and under no circumstance be permitted to go beyond 50%. Any reservation beyond 50% is constitutionally invalid.”

127Copy pinpoint127. Justice R.M. Sahai in paragraph 619(i) held that reservation should in no case exceed 50%. Justice T.K. Thommen, Justice Kuldip Singh and Justice R.M. Sahai delivered dissenting opinion. H

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128Copy pinpoint128. Now, we come to the judgment delivered by Justice P.B. A Sawant who delivered concurring opinion. Two paragraphs of the judgment of Justice Sawant are relevant to notice. In paragraph 518 justice Sawant observed that there is no legal infirmity in keeping the reservations under clause(4) alone or under clause (4) and clause (1) of Article 16 together, exceeding 50%. However, validity of the extent of B excess of reservations over 50% would depend upon the facts and circumstances of each case. In the same paragraph Justice Sawant, however, observed that it would ordinarily be wise and nothing much would be lost, if the intentions of the Framers of the Constitution and the observations of Dr. Ambedkar, on the subject be kept in mind. Justice Sawant obviously referred to speech of Dr. Ambedkar dated 30.11.1948 C where Dr. Ambedkar has categorically stated that reservation under Article 16(4) shall be confined to minority of seats. However, in paragraph 552 justice Sawant has recorded his answers and in answer to Question No.4 following was stated: “552........ D Question 4: Ordinarily, the reservations kept both under Article 16(1) and 16(4) together should not exceed 50 per cent of the appointments in a grade, cadre or service in any particular year. It is only for extraordinary reasons that this percentage may be exceeded. E However, every excess over 50 per cent will have to be justified on valid grounds which grounds will have to be specifically made out.”

129Copy pinpoint129. The above opinion of Justice Sawant is completely in accord with the opinion expressed by Justice B.P. Jeevan Reddy in paragraphs F 809 and 810. The opinion of Justice Sawant expressed in the above paragraph is that ordinarily, the reservations under Article 16(1) and 16(4) should not exceed 50% and it is only in extra-ordinary circumstances that this percentage may be exceeded which is also the opinion expressed by Justice B.P. Jeevan Reddy. Applying the principle G of Constitution Bench of this Court in Rajnarain Singh (supra), the opinion embodies the greatest common measure of agreement between the opinions expressed. Thus, the majority opinion, the ratio of judgment of Indra Sawhney as expressed by the majority is one which is expressed in paragraphs 809 and 810 of the judgment of Justice B.P. Jeevan Reddy. The submission of Shri Mukul Rohtagi cannot be accepted that majority H

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A opinion of Indra Sawhney is that 50% can be breached. The majority opinion as noted above is that normally reservation should not exceed 50% and it is only in extra-ordinary circumstances it can exceed 50%. What can be the extra-ordinary circumstances have been indicated in paragraph 810.

130Copy pinpoint130. Alternatively if we again look to the opinion in all six judgments, we notice : (a) Justice B.P. Jeevan Reddy (for himself and three other Judges) held in paragraph 809 that the reservation contemplated in clause (4) of Article 16 should not exceed C 50%. (b) Justice Thommen, Justice Kuldip Singh and Justice Sahai in their separate opinion held that reservation under Article 16(4) should not exceed 50%.

131Copy pinpoint131. Thus greatest common measure of agreement in six separate judgments delivered in Indra Sawhney is that: (i) Reservation under Article 16(4) should not exceed 50%. (ii) For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which extreme caution is to be exercised.

132Copy pinpoint132. The above is the ratio of Indra Sawhney judgment.

133Copy pinpoint133. We, thus, do not find any good ground to revisit Indra Sawhney or to refer the same to a larger Bench on the above ground urged.

134Copy pinpoint134. Now, we come to the second ground pressed by Shri Rohtagi is that different Judges from 1993 till date have spoken in different voices with regard to reservation under Article 15(4) and 16(4) which is a good ground to refer Indra Sawhney to a larger Bench.

135Copy pinpoint135. We may notice the Constitution Bench judgment of this Court in M.R. Balaji and others vs. State of Mysore and others, AIR 1963 SC 649, in which this Court while considering Article 15(4) had laid down that reservation under Article 15(4) ordinarily, speaking generally and in a broad manner special provision should be less than H 50%, how much less than 50% would depend upon the prevailing

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circumstances in each case. The Constitution Bench in the above case was considering the challenge to order passed by the State of Mysore that 68% of the seats available for admission to the Engineering and Medical Colleges and to other technical institutions were reserved and only 32% remain available to the merit pool. The question about the extent of the special provision which would be competent to State to make under Article 15(4) was also examined by the Constitution Bench. The Constitution Bench speaking through Justice P.B. Gajendra Gadkar stated following in paragraph 34: “34..........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, 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.” E

136Copy pinpoint136. The Constitution Bench also after noticing the judgment of this Court in General Manager, Southern Railway, Personnel Officer(Reservation), Southern Railway vs. Rangachari, AIR 1962 SC 36, observed that what is true in regard to Article 15(4) is equally true in Article 16(4). Following observations were made in paragraph F 37: “37. ….Therefore, what is true in regard to Article 15(4) is equally true in regard to Article 16(4). There can be no doubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Article 16(4), care would be G taken not to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general competition in a large field and by creating wide-spread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Article 15(4), reservation H

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A made under Article 16(4) beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. …”

137Copy pinpoint137. The reservation ought to be less than 50% was spoken in the above Constitution Bench judgment.

138Copy pinpoint138. The next Constitution Bench judgment which noted the judgment in M.R. Balaji (supra) and applied the percentage of 50% on the carry forward rule is T. Devadasan. The first judgment in which a discordant note with regard to 50% limit of reservation was expressed is the judgment of this Court in State of Kerala and another vs. N.M. C Thomas and others, 1976 (2) SCC 310, In the above case the Constitution Bench had occasion to examine Rule 13-AA of Kerala State and Subordinate Services Rules, 1958 which empower the State to grant exemption for a specific period to any member or member belonging to Scheduled Castes and Scheduled Tribes from passing the test referred to in Rule 13 and Rule 13-A. The State of Kerala granted exemption to member of SC and ST from passing of the test, N.M. Thomas, respondent had filed writ petition in the High Court asking for declaration that the Rule 13-AA as unconstitutional. The grievance of the respondent was that by virtue of exemption granted to members of the SC they have been promoted earlier than the respondent, although they had not passed the test. The High Court allowed the writ petition against which judgment the State of Kerala had come up in appeal. The appeal was allowed and Rule 13-AA was held to be valid. The Constitution Bench judgment of the Court was delivered by Chief Justice, A.N. Ray with whom Justice K.K. Mathew, Justice M.H. Beg, Justice V.R. Krishna Iyer and Justice S. Murtaza Fazal Ali concurred by delivering separate opinions. Two F Judges, namely, Justice H.R. Khanna and Justice A.C. Gupta delivered dissenting opinion. With regard to extent of reservation upto 50% only two Judges, namely, Justice Fazal Ali and Justice Krishna Iyer has expressed the opinion. Justice Beg noticed the Constitution Bench judgments of this Court in M.R. Balaji and T.Devadasan, which had G held that more than 50% reservation for backward class would violate the principle of reasonableness. No opinion of his own was expressed by Justice Beg. Justice Fazal Ali also in his judgment had noted 50% ceiling of reservation but observed that the above is only rule of caution and does not exhaust all categories. In paragraph 191 Justice Fazal Ali considered the question and following was laid down: H

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“191. This means that the reservation should be within the A permissible limits and should not be a cloak to fill all the posts belonging to a particular class of citizens and thus violate Article 16(1) of the Constitution indirectly. At the same time clause (4) of Article 16 does not fix any limit on the power of the Government to make reservation. Since clause (4) is a part of Article 16 of the B Constitution it is manifest that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Article 16(1). As to what would be a suitable reservation within permissible limits will depend upon the facts and circumstances of each case and no hard and fast rule can be laid down, nor can this matter be reduced to a mathematical formula so as to be adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50 per cent. As I read the authorities, this is, however, a rule of caution and does not exhaust all categories. Suppose for instance a State has a large number of backward classes of citizens which constitute 80 per cent of the population and the Government, in order to give them proper representation, reserves 80 per cent of the jobs for them, can it be said that the percentage of reservation is bad and violates the permissible limits of clause (4) of Article 16? The answer must necessarily be in the negative. The dominant object of this provision is to take steps to make inadequate representation adequate.”

139Copy pinpoint139. 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 G 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.

140Copy pinpoint140. With regard to 50% reservation limit, above are only observations made by two Hon’ble Judges in seven-Judge Constitution H

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A 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.

141Copy pinpoint141. 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: F “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].”

142Copy pinpoint142. In the above case Justice Subba Rao has expressed dissenting opinion. Justice Subba Rao observed that what was held in M.R. Balaji C 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.” G

143Copy pinpoint143. 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 H

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A 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 B cent. There is no rigidity about the fifty per cent rule which is only a convenient guideline laid down by Judges.

144Copy pinpoint144. 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 C 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). …… D 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 E 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) F 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 G 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. …… H (emphasis supplied)”

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145Copy pinpoint145. In the same judgment of K.C. Vasanth, Justice E.S. A 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 B 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.”

146Copy pinpoint146. The reference of Judges, who spoke in different voices are the judgments as noted above. It is relevant to notice that neither in C 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 D 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. E

147Copy pinpoint147. 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 F 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 G 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. H

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148Copy pinpoint148. 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.”

149Copy pinpoint149. 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% F 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- G 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 H

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are all constitutional requirements without which the structure of A equality of opportunity in Article 16 would collapse.”

150Copy pinpoint150. 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 B Rohtagi.

151Copy pinpoint151. 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.

152Copy pinpoint152. The judgment of Indra Sawhney has been followed by this C 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; D (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 E 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., F 2020(7) Scale 162, reiterated the principle as referred and reiterated that outer limit is 50% as specified in Indra Sawhney’s case.

153Copy pinpoint153. We move to ground Nos.3 and 4 as formulated by Shri Mukul Rohtagi to make a reference to the larger Bench. G

154Copy pinpoint154. 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 H

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A 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. B 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.” E

155Copy pinpoint155. 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 F 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 G 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 H

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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.

156Copy pinpoint156. 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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157Copy pinpoint157. 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.

158Copy pinpoint158. Shri Rohtagi submits that this Court in Balaji has held sub- B 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)......”

159Copy pinpoint159. As laid down by the Constitution Bench in Indra Sawhney, G 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.

160Copy pinpoint160. In Balaji, the Constitution Bench did not base its decision only on the observation that Article 15(4) is exception and proviso to H

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