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

& ANR. [ASHOK BHUSHAN, J.]

Article 15(1). Article 15(4) was referred to as a special provision. In A paragraph 34 of Balaji it is also laid down that special provision contemplated by Article 15(4) like reservation of posts by Article 16(4) must be within the reasonable limitation. We again quote the relevant observation from paragraph 34: “34. ...That is not to say that reservation should not be adopted; reservation should and must be adopted to advance the prospects of the weaker sections of society, but in providing for special measures in that behalf care should be taken not to exclude admission to higher educational centres to deserving and qualified candidates of other communities. A special provision contemplated by Article 15(4) like reservation of posts and appointments contemplated by Article 16(4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Article 15(4). In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50%; how much less than 50% would depend upon the present prevailing circumstances in each case...”

161Copy pinpoint161. Both Shri Mukul Rohtagi and Shri Kapil Sibal submits that constitutional provisions contained in Articles 15 and 16 do not permit laying down any percentage in measures to be taken under Articles 15(4) and 16(4). It is submitted that fixation of percentage of 50% cannot be said to be constitutional. We need to answer the question from where does 50% rule come from?

162Copy pinpoint162. The 50% rule spoken in Balaji and affirmed in Indra Sawhneyis to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. The Indra Sawhney itself gives answer of the question. In paragraph 807 of Indra Sawhney held that what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointment. 50% has been said to be reasonable and it is to attain the objective of equality. In paragraph 807 Justice Jeevan Reddy states: H

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A “807. We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits — and what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointments or posts, barring certain extraordinary situations as explained hereinafter. From this point of view, the 27% reservation provided by the impugned Memorandums in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in V. Narayana Rao v. State of A.P. [AIR 1987 AP 53 : 1987 Lab IC 152 : (1986) 2 Andh LT 258] , striking down the enhancement of reservation from 25% to 44% for OBCs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.”

163Copy pinpoint163. In paragraph 808, Justice Jeevan Reddy referred to speech of Dr. Ambedkar where he said that the reservation should be confined (to a minority of seats). The expression minority of seats”. When translated into figure the expression less than 50% comes into operation.

164Copy pinpoint164. To change the 50% limit is to have a society which is not founded on equality but based on caste rule. The democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 50% limit which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same. Thus, H answer to the question posed is that the percentage of 50% has been

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arrived at on the principle of reasonability and achieves equality as A enshrined by Article 14 of which Articles 15 and 16 are facets.

165Copy pinpoint165. We may notice one more submission of Shri Rohtagi in the above context. Shri Rohtagi submits that the Constitution of India is a living document, ideas cannot remain frozen, even the thinking of the framers of the Constitution cannot remain frozen for time immemorial. B Shri Rohtagi submits that due to change in need of the society the law should change.

166Copy pinpoint166. Justice J.M. Shalet and Justice K.N. Grover,JJ. Speaking in His Holiness Kesavananda Bharati Sripadagalvaru vs. State of Kerala and another, (1973) 4 SCC 225, laid down following in paragraph 482 and 634: “482. These petitions which have been argued for a very long time raise momentus issues of great constitutional importance. Our Constitution is unique, apart from being the longest in the world. It is meant for the second largest population with diverse people speaking different languages and professing varying religions. It was chiselled and shaped by great political leaders and legal luminaries, most of whom had taken an active part in the struggle for freedom from the British yoke and who knew what domination of a foreign rule meant in the way of deprivation of basic freedoms and from the point of view of exploitation of the millions of Indians. The Constitution is an organic document which must grow and it must take stock of the vast socio-economic problems, particularly, of improving the lot of the common man consistent with his dignity and the unity of the nation.

634. Every Constitution is expected to endure for a long time. Therefore, it must necessarily be elastic. It is not possible to place the society in a straightjacket. The society grows, its requirements change. The Constitution and the laws may have to be changed to suit those needs. No single generation can bind the course of the generation to come. Hence every Constitution, wisely drawn up, provides for its own amendment.”

167Copy pinpoint167. Shri Rohtagi has placed reliance on the judgment of this Court in K.S. Puttaswamy and another vs. Union of India and others, 2017(10) SCC 1, wherein in paragraph 476 following was laid down: H

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A “476. However, the learned Attorney General has argued in support of the eight-Judge Bench and the six-Judge Bench, stating that the Framers of the Constitution expressly rejected the right to privacy being made part of the fundamental rights chapter of the Constitution. While he may be right, Constituent Assembly Debates make interesting reading only to show us what exactly B the Framers had in mind when they framed the Constitution of India. As will be pointed out later in this judgment, our judgments expressly recognise that the Constitution governs the lives of 125 crore citizens of this country and must be interpreted to respond to the changing needs of society at different points in time.”

168Copy pinpoint168. Another judgment relied by Shri Rohtagi is in Supreme Court Advocates-on-Record Association and others vs. Union of India, 1993(4) SCC 441, wherein in paragraph 16 following has been laid down: “16. The proposition that the provisions of the Constitution D must be confined only to the interpretation which the Framers, with the conditions and outlook of their time would have placed upon them is not acceptable and is liable to be rejected for more than one reason — firstly, some of the current issues could not have been foreseen; secondly, others would not have been discussed and thirdly, still others may be left over as controversial issues, i.e. termed as deferred issues with conflicting intentions. Beyond these reasons, it is not easy or possible to decipher as to what were the factors that influenced the mind of the Framers at the time of framing the Constitution when it is juxtaposed to the present time. The inevitable truth is that law is not static and immutable but ever increasingly dynamic and grows with the ongoing passage of time.”

169Copy pinpoint169. The time fleets, generations grow, society changes, values and needs also change by time. There can be no denial that law should change with the changing time and changing needs of the society. G However, the proposition of law as noted above does not render any help to the submission of Shri Rohtagi that in view of needs of the society which are changing 50% rule should be given up.

170Copy pinpoint170. The constitutional measures of providing reservation, giving concessions and other benefits to backward classes including socially H

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and educationally backward class are all affirmative measures. We have A completed more than 73 years of independence, the Maharashtra is one of the developed States in the country which has highest share in the country’s GST i.e. 16%, higher share in Direct Taxes-38% and higher contribution to country’s GDP, 38.88%. The goal of the Constitution framers was to bring a caste-less society. The directive principles of the B State Policy cast onerous obligation on the States to promote welfare of the people by securing and protecting as effectively as it may social order in which social justice, economic and political shall inform all the institutions of the national life. Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. C The State ought to bring other measures including providing educational facilities to the members of backward class free of cost, giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be self- reliant.

171Copy pinpoint171. We recall the observation made by Justice R.V. Raveendran D in Ashoka Kumar Thakur vs. Union of India and others, 2008(6) SCC 1, where His Lordship held that any provision for reservation is a temporary crutch, such crutch by unnecessary prolonged use, should not become a permanent liability. In words of Justice Raveendran paragraph 666 is as follows: E “666. Caste has divided this country for ages. It has hampered its growth. To have a casteless society will be realisation of a noble dream. To start with, the effect of reservation may appear to perpetuate caste. The immediate effect of caste-based reservation has been rather unfortunate. In the pre-reservation era people wanted to get rid of the backward tag—either social or economical. But post reservation, there is a tendency even among those who are considered as “forward”, to seek the “backward” tag, in the hope of enjoying the benefits of reservations. When more and more people aspire for “backwardness” instead of “forwardness” the country itself stagnates. Be that as it may. Reservation as an affirmative action is required only for a limited period to bring forward the socially and educationally backward classes by giving them a gentle supportive push. But if there is no review after a reasonable period and if reservation is continued, the country will become a caste H

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A divided society permanently. Instead of developing a united society with diversity, we will end up as a fractured society forever suspicious of each other. While affirmative discrimination is a road to equality, care should be taken that the road does not become a rut in which the vehicle of progress gets entrenched and stuck. Any provision for reservation is a temporary crutch. Such crutch by unnecessary prolonged use, should not become a permanent liability. It is significant that the Constitution does not specifically prescribe a casteless society nor tries to abolish caste. But by barring discrimination in the name of caste and by providing for affirmative action Constitution seeks to remove the difference in status on the basis of caste. When the differences in status among castes are removed, all castes will become equal. That will be a beginning for a casteless egalitarian society.”

172Copy pinpoint172. We have no doubt that all Governments take measures to improve the welfare of weaker sections of the society but looking to the increased requirement of providing education including higher education to more and more sections of society other means and measures have to be forged. In view of the privatisation and liberalisation of the economy public employment is not sufficient to cater the needs of all. More avenues for providing opportunities to members of the weaker sections of the society and backward class to develop skills for employment not necessary the public service. The objectives engrafted in our Constituted and ideals set by the Constitution for the society and the Governments are still not achieved and have to be pursued. There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone.

173Copy pinpoint173. In Ashoka Kumar Thakur vs. Union of India, (supra), Justice Dalveer Bhandari has also laid down that the balance should be struck to ensure that reservation would remain reasonable. We are of the considered opinion that the cap on percentage of reservation as has been laid down by Constitution Bench in Indra Sawhney is with the object of striking a balance between the rights under Article 15(1) and 15(4) as well as Articles 16(1) and 16(4). The cap on percentage is to achieve principle of equality and with the object to strike a balance which cannot be said to be arbitrary or unreasonable. H

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174Copy pinpoint174. The judgment of Indra Sawhney is being followed for more than a quarter century without there being any doubt raised in any of the judgments about the 50%, the 50% rule has been repeatedly followed.

175Copy pinpoint175. We may notice one more aspect in the above respect. Granville Austin in “The Indian Constitution: Cornerstone of a Nation” while discussing the topic “The judiciary and the social revolution” states: “The members of the Constituent Assembly brought to the framing of the Judicial provisions of the Constitution an idealism equalled only by that shown towards the Fundamental Rights. Indeed, the Judiciary was seen as an extension of the Rights, for it was the courts that would give the Rights force. The Judiciary was to be an arm of the social revolution, upholding the equality that Indians and longed for during colonial days, but had not gained-not simply because the regime was colonial, and perforce repressive, but largely because the British had feared that social change would endanger their rule.” D

176Copy pinpoint176. The Constitution enjoins a constitutional duty to interpret and protect the Constitution. This Court is guardian of the Constitution.

177Copy pinpoint177. We may also quote Justice Mathew, in Keshavananda Bharati (Supra), where he reiterated that judicial function is both creation and application of law. The principle of Indra Sawhney is both creation application of law. In paragraph, 1705, Justice Mathew says: - “1705. The judicial function is, like legislation, both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to be created, whereas legislation is usually determined by the Constitution only in the former respect. But that is a difference in degree only. From a dynamic point of view, the individual norm created by the judicial decision is a stage in a process beginning with the establishment of the first Constitution, continued by legislation and customs, and leading to the judicial decisions. The Court not merely formulates already existing law although it is generally asserted to be so. It does not only ‘seek’ and ‘find’ the law existing previous to its decision, it does not merely pronounce the law which exists ready and finished prior to its pronouncement. Both in establishing the presence of the H

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A conditions and in stipulating the sanction, the judicial decision has a constitutive character. The law-creating function of the courts is especially manifest when the judicial decision has the character of a precedent, and that means when the judicial decision creates a general norm. Where the courts are entitled not only to apply pre-existing substantive law in their decisions, but also to create B new law for concrete cases, there is a comprehensible inclination to give these judicial decisions the character of precedents. Within such a legal system, courts are legislative organs in exactly the same sense as the organ which is called the legislator in the narrower and ordinary sense of the term…””

178Copy pinpoint178. In All India Reporter Karamchari Sangh and others vs. All India Reporter Limited and others, 1988 Supp SCC 472, a three-Judge Bench speaking through Justice Venkataramiah held that the decisions of the Supreme Court which is a Court of record, constitute a source of law apart from being a binding precedent under Article 141. D Following was laid down in paragraph 11: “11. .... Article 141 of the Constitution provides that the law declared by Supreme Court shall be binding on all courts within the territory of India. Even apart from Article 141 of the Constitution the decisions of the Supreme Court, which is a court of record, constitute a source of law as they are the judicial precedents of E the highest court of the land. ….”

179Copy pinpoint179. This Court again in Nand Kishore vs. State of Punjab, 1995(6) SCC 614, laid down that under Article 141 law declared by this Court is of a binding character and as commandful as the law made by legislative body or authorized delegate of such body. In paragraph 17 F following was laid down: “17. …Their Lordships’ decisions declare the existing law but do not enact any fresh law”, is not in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that. The Court as a wing of the State is by itself a G source of law. The law is what the Court says it is. Patently the High Court fell into an error in its appreciation of the role of this Court.”

180Copy pinpoint180. When the Constitution Bench in Indra Sawhney held that 50% is upper limit of reservation under Article 16(4), it is the law which H is binding under Article 141 and to be implemented.

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181Copy pinpoint181. The submission of Shri Kapil Sibal that the judgment of Indra A Sawhney is shackle to the legislature in enacting the law does not commend us. When the law is laid down by this Court that reservation ought not to exceed 50% except in extra-ordinary circumstances all authorities including legislature and executive are bound by the said law. There is no question of putting any shackle. It is the law which is binding on all.

182Copy pinpoint182. This Court has laid down in a large number of cases that reservation in super-specialties and higher technical and in disciplines like atomic research etc. are not to be given which is law developed in the national interest. In paragraph 838, Indra Sawhney has noticed certain posts where reservations are not conducive in public interest and the national interest. Following has been held in paragraph 838: “838. While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. D In such situations, it may not be advisable to provide for reservations. For example, technical posts in research and development organisations/departments/ institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g., Professors (in Education), Pilots in Indian Airlines and Air India, Scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.” 182(a). If we accept the submission of the learned counsel for the respondent to the logical extent that since there is no indication in Articles 15 and 16 certain posts cannot be reserved, no such exclusion could have been made. The law as existing today is one which has been laid down in Indra Sawhney in paragraph 838 which is a law spelt out from the constitutional provisions including Article 15 and 16. G

183Copy pinpoint183. What has been laid down by the Constitution Bench in Indra Sawhney in paragraphs 839, 840 and 859(8) is law declared by this Court and is to be implemented also by all concerned. The Parliament has passed the Central Educational Institutions Reservation and Appointment Act, 2006 providing for reservation- 15% for SC, 7-1/2%, H

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A 15%, 27% for other classes in Central Educational Institutions (Reservation in Admission) Act, 2006. Section 4 provides that Act not to apply in certain cases which is to the following effect: “Section 4 of the Act specifically says that the provisions of Section 3 shall (sic/not) apply to certain institutions. Section 4 B reads as under: “4. Act not to apply in certain cases.—The provisions of Section 3 of this Act shall not apply to— (a) a Central Educational Institution established in the tribal areas referred to in the Sixth Schedule to the Constitution; C (b) the institutions of excellence, research institutions, institutions of national and strategic importance specified in the Schedule to this Act: Provided that the Central Government may, as and when considered necessary, by notification in the Official Gazette, amend the Schedule; (c) a Minority Educational Institution as defined in this Act; (d) a course or programme at high levels of specialisation, including at the post-doctoral level, within any branch or study or faculty, which the Central Government may, in consultation with the appropriate authority, specify.”

184Copy pinpoint184. Exclusion of reservation in above Parliamentary enactment clearly indicates that law declared by Indra Sawhney in paragraphs 839, 840 and 859 as noted above is being understood as a law and being implemented, this reinforces our view that ceiling limit of 50% for reservation as approved by Indra Sawhney’s case is a law within the meaning of Article 141 and is to be implemented by all concerned.

185Copy pinpoint185. In view of the above discussion, ground Nos. 3 and 4 as urged by Shri Mukul Rohtagi do not furnish any ground to review Indra G Sawhney or to refer the said judgment to the larger Constitution Bench. REASON NO. 5

186Copy pinpoint186. Shri Rohtagi submits that Indra Sawhney judgment being judgment on Article 16(4), its ratio cannot be applied with regard to Article 15(4). Justice Jeevan Reddy before proceeding to answer the H

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questions framed clearly observed that the debates of the Constituent A Assembly on Article 16 and the decision of this Court on Articles 15 and 16 and few decisions of US Supreme Court are helpful. The observations of the Court that decision of this Court on Article 16 and Article 15 are helpful clearly indicate that principles which have been discerned for interpreting Article 16 may also be relevant for interpretation of Article B

15. Justice Jeevan Reddy has noted two early cases on Article 15 namely The State of Madras versus Champakam Dorairajan, AIR 1951 SC 226 and B.Venkataramana versus State of Tamil Nadu and Another, AIR 1951 SC 229. Justice Jeevan Reddy in paragraph 757 has observed that although Balaji was not a case arising under Article 16(4) but what is said about Article 15(4) came to be accepted as equally good and valid for the purposes of Article 16(4). Justice Jeevan Reddy said in paragraph 757:- “757. Though Balaji was not a case arising under Article 16(4), what it said about Article 15(4) came to be accepted as equally good and valid for the purpose of Article 16(4). The formulations enunciated with respect to Article 15(4) were, without question, applied and adopted in cases arising under Article 16(4). It is, therefore, necessary to notice precisely the formulations in Balaji relevant in this behalf. ... (underlined by us)” E

187Copy pinpoint187. It was further held in paragraph 808 that clause (4) of Article 16 is a means of achieving the objective of equality and it is nothing but reinstatement of principle of equality enshrined in Article 14. The relevant observation by Justice Jeevan Reddy in paragraph 808 is as follows: “808. It needs no emphasis to say that the principle aim of F Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the G principle of equality enshrined in Article 14. The provision under Article 16(4) -conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. H

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A Ambedkar himself contemplated reservation being “confined to a minority of seats” (See his speech in Constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from B that concept. (underlined by us)”

188Copy pinpoint188. Clause (4) of Article 15 is also a special provision which is nothing but reinstatement of the principles of equality enshrined in Article

C 14. The principles which have been laid down in paragraph 808 with respect to Article 16(4) are clearly applicable with regard to Article 15(4) also. In the majority judgment of this Court in Indra Sawhney, the Balaji principle i.e. the 50 percent rule has been approved and not departed with. The 50 percent principle which was initially spoken of in Balaji having been approved in Indra Sawhney. We failed to see as to D how prepositions laid down by this Court in Indra Sawhney shall not be applicable for Article 15. It has been laid down in Indra Sawhney that expression “Backward Class” used in Article 16(4) is wider that the expression “Socially and Educationally Backward Class” used in Article 15(5).

189Copy pinpoint189. We thus do not find any substance in submissions of Mukul Rohtagi that the judgment of this Court in Indra Sawhney need not be applied in reference to Article 15. REASON -6

190Copy pinpoint190. Shri Rohtagi submits that in Indra Sawhney judgment, the impact of Directive Principles of State Policy such as Article 39(b)(c) and Article 46 have not been considered while interpreting Article 14, 16(1) and 16(4). The Directive Principles of State Policy enshrined in Part-IV of the Constitution are fundamental in governance of the country. The State while framing its policy, legislation, had to take measures to G give effect to the Constitutional Objective as contained in Part-IV of the Constitution. The Fundamental Rights are rights which the Constitution guarantees to the Citizen whereas Part-IV of the Constitution is the obligation of the State which it has to discharge for securing Constitutional objective. In the most celebrated judgment of this Court i.e. Keshavananda Bharati Sripadagalvaru and others versus State of H

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Kerala and another, (1973) 4 SCC 225, in several of the opinions, the A Part-III and Part-IV of the Constitution has been dealt with. Chief Justice S.M. Sikri,in paragraph 147 of the judgment, stated that: - “147. It is impossible to equate the directive principles with fundamental rights though it cannot be denied that they are very important. But to say that the directive principles give a directive B to take away fundamental rights in order to achieve what is directed by the directive principles seems to me a contradiction in terms.”

191Copy pinpoint191. In the same judgment, Justice Hegde and Mukherjea J.J, held that Fundamental Rights and the Directive Principles of State C Policy constitute the conscience of our Constitution. Following was stated in paragraph 712: - “712. No one can deny the importance of the Directive Principles. The Fundamental Rights and the Directive Principles constitute the ‘conscience’ of our Constitution. The purpose of the D Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the E common man and to change the structure of bur society. It aims at making the Indian masses free in the positive sense.”

192Copy pinpoint192. The Constitution Bench of this Court in Minerva Mills limited and others versus Union of India and others, (1980) 3 SCC 625, has also elaborately dealt both Fundamental Rights and Directive F Principles of State Policy. The question which arose before the Constitution bench in context of Fundamental Rights and Directive Principles of State Policy was noticed by Justice Chandrachud, C.J., in paragraph 40 as:- “40. The main controversy in these petitions centres round the G question whether the directive principles of State policy contained in Part IV can have primacy over the fundamental rights conferred by Part III of the Constitution. That is the heart of the matter. Every other consideration and all other contentions are in the nature of by-products of that central theme of the case. The competing H

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A claims of parts III and IV constitute the pivotal point of the case because, Article 31C as amended by section 4 of the 42nd Amendment provides in terms that a law giving effect to any directive principle cannot be challenged as void on the ground that it violates the rights conferred by Article 14 or The 42nd Amendment by its section 4 thus subordinates the fundamental B rights conferred by Articles 14 and 19 to the directive principles.”

193Copy pinpoint193. It was held that both Part-III and Part-IV of the Constitution are two kinds of State’s obligation i.e. negative and positive. The harmony and balance between Fundamental Rights and Directive Principles of State Policy is an essential feature of the Basic Structure of the C Constitution. Justice Chandrachud elaborating the relation between Part-III and Part-IV stated in paragraph 57: - “57. This is not mere semantics. The edifice of our Constitution is built upon the concepts crystallised in the Preamble. We resolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political. We, therefore, put part IV into our Constitution containing directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part, III in our Constitution conferring those rights on the people. Those rights are not an end in themselves but are the means to an end. The end is specified in Part IV. Therefore, the rights conferred by Art III are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances, be suspended. But just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is human freedoms. One of the faiths of our founding fathers was the purity of means. Indeed, under our law, even a dacoit who has committed a murder cannot be put to death in the exercise of right of self- defence after he has made good his escape. So great is the H

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insistence of civilised laws on the purity of means. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.”

194Copy pinpoint194. Article 38 of Directive Principles of State Policy oblige the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice social, economic and political shall inform all the institutions of national life. Article 15(4) and Article 16(4) of the Constitution are nothing but steps in promoting and giving effect to policy under Article 38 of the Constitution. Justice Jeevan Reddy in his judgment of Indra Sawhney has noted Article 38 and Article 46 of Part-IV of the Constitution. In paragraph 647, Article 38 and 46 has been notice in following words: - “647. The other provisions of the Constitution having a bearing on D Article 16 are Articles 38, 46 and the set of articles in Part XVI. Clause (1) of Article 38 obligates the State to “strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” E

195Copy pinpoint195. The criticism mounted by Mr. Rohtagi that Indra Sawhney judgment does not consider the impact of Directive Principles of State Policy while interpreting Article 16 is thus not correct. Further in paragraph 841, it has been held that there is no particular relevance of Article 38 in context of Article 16(4). In paragraph 841, following has been F observed: - “841. We may add that we see no particular relevance of Article 38(2) in this context. Article 16(4) is also a measure a measure to ensure equality of status besides equality of opportunity.”

196Copy pinpoint196. Mr. Rohtagi has referred to Article 39(b) and Article 39(c) G of the Constitution and has submitted that there is no consideration in Indra Sawhney judgment. Article 39 of the Constitution enumerates certain principles of policy to be followed by the State. Article 39 (b) and 39(c) which are relevant for the present case are as follows: - “39. Certain principles of policy to be followed by the State:- H

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A (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the B common detriment;”

197Copy pinpoint197. We fail to see that how the measures taken under Article 15(4) and 16(4) shall in any manner can be read to breach Directive Principles of State Policy. Article 16(4) and 15(4) are also measures to ensure equality of status besides the equality of opportunity.

198Copy pinpoint198. We thus do not find any substance in the above submission of Mr. Mukul Rohtagi. Ground NO. 7

199Copy pinpoint199. Shri Rohtagi submits that an Eleven-Judge Bench of this D Court in T.M.A. Pai foundation and others versus State of Karnataka and others, (2002) 8 SCC 481, has struck down the law laid down by this Court in St. Stephen’s College case, (1992) 1 SCC 558 which had held that aided minority educational institutions although entitled to preferably admit their community candidate but intake should not be more than 50 percent. Shri Rohtagi submits that St. Stephen’s College E case has put a cap of 50 percent which was nothing but recognition of Indra Sawhney Principle. Shri Rohtagi submits that the Eleven-Judge Bench in T.M.A. Pai Foundation case has set aside the aforesaid cap of 50 percent. Mr. Rohtagi relies on paragraph 151 of Kirpal,C.J. and paragraph 338 by Rumapal, J. of the judgment, which is to the following effect: - “151. The right of the aided minority institution to preferably admit students of its community, when Article 29(2) was applicable, has been clarified by this Court over a decade ago in the St. Stephen’s College case. While upholding the procedure for admitting students, this Court also held that aided minority educational institutions were entitled to preferably admit their community candidates so as to maintain the minority character of the institution, and that the state may regulate the intake in this category with due regard to the area that the institution was intended to serve, but that this intake should not be more than 50% in any case. Thus, St. H Stephen’s endeavoured to strike a balance between the two

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Articles. Though we accept the ratio of St. Stephen’s, which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located the state properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established.

388. I agree with the view as expressed by the Learned Chief Justice that there is no question of fixing a percentage when the need may be variable. I would only add that in fixing a percentage, the Court in St. Stephens in fact “reserved” 50% of available seats in a minority institution for the general category ostensibly under Article 29(2). pertains to the right of an individual and is not a class right. It would therefore apply when an individual is denied admission into any educational institution maintained by the State or receiving aid from the State funds, solely on the basis of the ground of religion, race, caste, language or any of them. It does not operate to create a class interest or right in the sense that any educational institution has to set apart for non-minorities as a class and without reference to any individual applicant, a fixed percentage of available seats. Unless Articles 30(1) and 29(2) are allowed to operate in their separate fields then what started with the voluntary F ‘sprinkling’ of outsiders, would become a major inundation and a large chunk of the right of an aided minority institution to operate for the benefit of the community it was set up to serve, would be washed away.”

200Copy pinpoint200. T.M.A. Pai foundation case was a judgment of this Court G interpreting Article 29 and 30 of the Constitution. Article 30 of the Constitution gives a Fundamental Right to the minorities to establish and administer educational institutions. The Right of minority is different and distinct right as recognized in the Constitution. The 93rd Constitutional Amendment Act, 2005, by which sub-clause (5) has been added in Article H

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A 15 excludes the minority educational institutions referred to in clause (1) of Article 30. Sub-clause (5) of Article 15 is clear constitutional indication that with regard to rights of minority regarding admission to educational institutions, the minority educational institutions referred to in clause (1) of Article 30 are completely excluded. What was laid down by this Court in T.M.A. Pai foundation case, finds clear epoch in the 93 rd B Constitutional Amendment.

201Copy pinpoint201. We may refer to a Three-Judge Bench judgment of this Court in Society for Un-aided Private Schools of Rajasthan versus Union of India and another, (2012) 6 SCC 1, where this Court had occasion to consider Article 14, 15 & 16 as well as 21A of the Constitution. C Shri Kapadia, C.J., speaking for majority, held that reservation of 25 percent in unaided minority schools result in changing character of schools holding that Section 12(1)(c) of Right to Education Act, 2009 violates right conferred under minority school under Article 31. Paragraphs 61 and 62 of the judgment are as follows: - D “61. Article 15(5) is an enabling provision and it is for the respective States either to enact a legislation or issue an executive instruction providing for reservation except in the case of minority educational institutions referred to in Article 30(1). The intention of the Parliament is that the minority educational institution referred to in Article 30(1) is a separate category of institutions which needs protection of Article 30(1) and viewed in that light we are of the view that unaided minority school(s) needs special protection under Article 30(1).Article 30(1) is not conditional as Article 19(1)(g). In a sense, it is absolute as the Constitution framers thought that it was the duty of the Government of the day to protect the minorities in the matter of preservation of culture, language and script via establishment of educational institutions for religious and charitable purposes [See: Article 26].

62. Reservations of 25% in such unaided minority schools result in changing the character of the schools if right to establish and administer such schools flows from the right to conserve the language, script or culture, which right is conferred on such unaided minority schools. Thus, the 2009 Act including Section 12(1)(c) violates the right conferred on such unaided minority schools under Article 30(1). ” H

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202Copy pinpoint202. From the law as laid down in T.M.A. Pai foundation Case A (supra)as well as Society for Un-aided Private Schools of Rajasthan (supra), it is clear that there can be no reservation in unaided minority schools referred in Article 30(1).

203Copy pinpoint203. The 50 percent ceiling as put by this Court in St. Stephen’s College case was struck off by T.M.A. Pai Foundation case to give B effect to content and meaning of Article 30. The striking of the cap of 50 percent with regard to minority institutions is an entirely different context and can have no bearing with regard to 50 percent cap which has been approved in the reservation under Article 16(4) in the Indra Sawhey’s case.

204Copy pinpoint204. We thus are of the view that judgment of this Court in T.M.A. C Pai Foundation case has no bearing on the ratio of Indra Sawhney’s case. Ground – 8

205Copy pinpoint205. Shri Rohtagi relying on Constitutional 77th and 81st Amendment Acts submits that these amendments have the effect of undoing in part the judgment of Indra Sawhney which necessitates revisiting of the judgment. By the 77thConstitutional Amendment Act, 1995, sub-clause (4A) was inserted in Article 16 of the Constitution. The above Constitutional Amendment was brought to do away the law laid down by this Court in Indra Sawhney that no reservation in promotion can be granted. By virtue of sub-clause 4A of Article 16 now, the reservation in promotion is permissible in favour of Scheduled Caste, Scheduled Tribe. The ratio of Indra Sawhney to the above effect no longer survives and the Constitutional provisions have to be give effect to. There can be no case for revisiting the Indra Sawhney judgment on this ground. Now coming to 81stConstitutional Amendment Act, 2000, by which sub-clause F (4B) was inserted in Article 16. The above provision was also to undo the ratio laid down by the Indra Sawhney judgment regarding carry forward vacancies. The Constitutional Amendment laid down that in unfilled vacancies of year which was reserved shall be treated as separate class of vacancies to be filled up in any succeeding year or years and G such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determine the ceiling of 50 percent. Article (4B) is for any reference is quoted as below: - “16(4B). Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved H

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A for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

206Copy pinpoint206. The above Constitutional Amendment makes it very clear that ceiling of 50 percent “has now received Constitutional recognition.” Ceiling of 50 percent is ceiling which was approved by this Court in Indra Sawhney’s case, thus, the Constitutional Amendment in fact recognize the 50 percent ceiling which was approved in Indra Sawhney’s case and on the basis of above Constitutional Amendment, no case has been made out to revisit Indra Sawhney. Ground-9

207Copy pinpoint207. Shri Rohtagi submits that judgment of Indra held that the States cannot identify the backward classes solely on the basis of economic criteria as Indra Sawhney has set aside the O.M. dated 13.08.1990 which provided 10 percent reservation to economically weaker section. The submission of Shri Rohtagi is that by 103rdConstitutional Amendment, Parliament has inserted Article 15(6) and 16(6) whereby E 10 percent reservation is granted to economically weaker section.

208Copy pinpoint208. It is submitted that in view of the 10 percent reservation as mandated by 103rdConstitutional amendment, 50 percent reservation as laid down by Indra Sawhney is breached. Shri Rohtagi has further submitted that the issue pertaining to 103rdConstitutional Amendment F has been referred to a larger Bench in W.P. (Civil) No. 55 of 2019, Janhit Abhiyan versus Union of India. In view of above,We refrain ourselves from making any observation regarding effect and consequence of 103rd Constitutional Amendment. Ground– 10 G

209Copy pinpoint209. Shri Rohtagi submits that in paragraph 810 of judgment of Indra Sawhney, certain extraordinary circumstances have been referred to which cannot be said to be cast in stone. The extra-ordinary circumstances provided in paragraph 810 i.e. of far-flung and remote area cannot be cast in stone and forever unchanging. He submits that H the same was given only by way of example and cannot be considered

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exhaustive. Morever, it is geographical test which may not apply in every A State. In paragraph 810 of Indra Sawhney, Justice Jeevan Reddy provided: - “810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in B far-flung and remote areas the population inhabiting those areas might, on account of their being put of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.” C

210Copy pinpoint210. We fully endorse the submission of Shri Rohtagi that extraordinary situations indicated in paragraph 810 were only illustrative and cannot be said to be exhaustive. We however do not agree with Mr. Rohtagi that paragraph 810 provided only a geographical test. The use of expression “on being out of the main stream of national life”, is a D social test, which also needs to be fulfilled for a case to be covered by exception.

211Copy pinpoint211. We may refer to a Three-Judge Bench judgment of this Court in Union of India and others versus Rakesh Kumar and others,(2010) 4 SCC 50, this Court had occasion to consider the provisions of Fifth E Schedule of the Constitution. Article 243B and provisions of Part-IX of the Constitution inserted by 73rdConstitutional Amendment Act, 1992. Reservation of seats was contemplated in the statutory provisions. The judgment of Indra Sawhney especially paragraph 809 and 810 were also noted and extracted by this Court. This Court noted that even the judgment of Indra Sawhney did recognize the need for exception treatment in such circumstances. In paragraph 44, this Court held that the case of Panchayats in Scheduled Areas is a fit case that warrant exceptional treatment with regard to reservation and the rationale of upper ceiling of 50 percent for reservation in higher education and public employment can be readily extended to the domain of vertical representation at the Panchayat level in the Scheduled Area. Paragraphs 43 and 44 are extracted below: - “43. For the sake of argument, even if an analogy between Article 243-D and Article 16(4) was viable, a close reading of the Indra H

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A Sawhney decision will reveal that even though an upper limit of 50% was prescribed for reservations in public employment, the said decision did recognise the need for exceptional treatment in some circumstances. This is evident from the following words (at Paras. 809, 810): B “809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%.

810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the C great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being put of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. D In doing so, extreme caution is to be exercised and a special case made out.”

44. We believe that the case of Panchayats in Scheduled Areas is a fit case that warrants exceptional treatment with regard to reservations. The rationale behind imposing an upper ceiling of E 50% in reservations for higher education and public employment cannot be readily extended to the domain of political representation at the Panchayat-level in Scheduled Areas. With respect to education and employment, parity is maintained between the total number of reserved and unreserved seats in order to maintain a F pragmatic balance between the affirmative action measures and considerations of merit.”

212Copy pinpoint212. This Court carved out one more exceptional circumstance which may fit in extraordinary situations as contemplated by paragraph 810 in the Indra Sawhney’s case. We may also notice that the G Constitution Bench of this Court in K. Krishna Murthy and others versus Union of India and another, (2010) 7 SCC 202. In paragraph 82(iv) applied 50 percent ceiling in vertical reservation in favour of Scheduled Caste/Scheduled Tribe/ Other Backward Class in context of local self government. However, it was held that exception can be made in order to safeguard the interest of Scheduled Tribes located in Scheduled H Area. Paragraph 82(iv) is as follows: -

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“82.(iv) The upper ceiling of 50% vertical reservations in favour of SCs/STs/OBCs should not be breached in the context of local self-government. Exceptions can only be made in order to safeguard the interests of the Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas.”

213Copy pinpoint213. The judgment of the Constitution Bench in the above case had approved the Three-Judge Bench judgment of this Court in Union of India and others Rakesh Kumar (supra) in paragraph 67, which is to the following effect: - “67. In the recent decision reported as Union of India v. Rakesh Kumar, (2010) 4 SCC 50, this Court has explained why it may be necessary to provide reservations in favour of Scheduled Tribes that exceed 50% of the seats in panchayats located in Scheduled Areas. However, such exceptional considerations cannot be invoked when we are examining the quantum of reservations in favour of backward classes for the purpose of local bodies located in general areas. In such circumstances, the vertical reservations in favour of SC/ST/OBCs cannot exceed the upper limit of 50% when taken together. It is obvious that in order to adhere to this upper ceiling, some of the States may have to modify their legislations so as to reduce the quantum of the existing quotas in favour of OBCs.” E

214Copy pinpoint214. We thus are of the view that extraordinary situations indicated in paragraph 810 are only illustrative and not exhaustive but paragraph 810 gives an indication as to which may fit in extra ordinary situation.

215Copy pinpoint215. In view of foregoing discussions, we do not find any substance in grounds raised by Shri Rohtagi for re-visiting the judgment of Indra F Sawhney and referring the judgment of Indra Sawhney to a larger Bench. The judgment of Indra Sawhney has been repeatedly followed by this Court and has received approval by at least four Constitution Benches of this Court as noted above. We also follow and reiterate the G prepositions as laid down by this Court in Indra Sawhney in paragraphs 809 and 810. We further observe that ratio of judgment of Indra Sawhney is fully applicable in context of Article 15 of the Constitution. (8)Principle of Stare Decisis H

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216Copy pinpoint216. The seven-Judge Constitution Bench judgment in Keshav Mills [Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 has unanimously held that before reviewing and revising its earlier decision the Court must itself satisfy whether it is necessary to do so in the interest of public good or for any other compelling reason and the Court must endeavour to maintain a certainty and continuity in the interpretation of B the law in the country.

217Copy pinpoint217. In Jarnail Singh and others vs. Lachhmi Narain Gupta and others, 2018(10) SCC 396, the prayer to refer the Constitution Bench judgment in M.Nagaraj (supra) was rejected by the Constitution Bench relying on the law as laid down in Keshav Mills’ case. In C paragraph 9 following has been laid down: “9. Since we are asked to revisit a unanimous Constitution Bench judgment, it is important to bear in mind the admonition of the Constitution Bench judgment in Keshav Mills [Keshav Mills Co. Ltd. v. CIT, (1965) 2 SCR 908 : AIR 1965 SC 1636] . This D Court said: (SCR pp. 921-22 : AIR p. 1644, para 23) “23. … [I]n reviewing and revising its earlier decision [Ed.: The reference is to New Jehangir Vakil Mills Ltd. v. CIT, AIR 1959 SC 1177 and Petlad Turkey Red Dye Works Co. Ltd. v. CIT, 1963 Supp (1) SCR 871, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a

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revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations: — What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges E of this Court.”

218Copy pinpoint218. The principle of stare decisis also commends us not to accept the submissions of Shri Rohtagi. The Constitution Bench of this Court in State of Gujarat versus Mirzapur, Moti Kureshi Kassab Jamat and others, (2005) 8 SCC 534, explaining the principle of Stare F decisis laid down following in paragraphs 111 and 118:- “111. Stare decisis is a Latin phrase which means “stand by decided cases; to uphold precedents; to maintain former adjudication”. This principle is expressed in the maxim “stare decisis et non quieta movere” which means to stand by decisions G and not to disturb what is settled. This was aptly put by Lord Coke in his classic English version as “Those things which have been so often adjudged ought to rest in peace”. However, according to Justice Frankfurter, the doctrine of stare decisis is not “an imprisonment of reason” (Advanced Law Lexicon, P. H

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A Ramanatha Aiyer, 3rd Edn. 2005, Vol.4, P.4456). The underlying logic of the doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible.

B 118. The doctrine of stare decisis is generally to be adhered to, because well-settled principles of law founded on a series of authoritative pronouncements ought to be followed. Yet, the demands of the changed facts and circumstances, dictated by forceful factors supported by logic, amply justify the need for a fresh look.” C

219Copy pinpoint219. The Constitution Bench in Indra Sawhney speaking through Justice Jeevan Reddy has held that the relevance and significance of the principle of stare decisis have to be kept in mind. It was reiterated that in law certainty, consistency and continuity are highly desirable features. Following are the exact words in paragraph 683:- D “683... Though, we are sitting in a larger Bench, we have kept in mind the relevance and significance of the principle of Stare decisis. We are conscious of the fact that in law certainty, consistency and continuity are highly desirable features. Where a decision has stood the test of time and has never been doubted, we have E respected it unless, of course, there are compelling and strong reasons to depart from it. Where, however, such uniformity is not found, we have tried to answer the question on principle keeping in mind the scheme and goal of our Constitution and the material placed before us.”

220Copy pinpoint220. What was said by Constitution Bench in Indra Sawhney clearly binds us. Judgment of Indra Sawhney has stood the test of time and has never been doubted. On the clear principle of stare decisis, judgment of Indra Sawhney neither need to be revisited nor referred to larger bench of this Court.

221Copy pinpoint221. The principle laid down in Keshav Mills when applied in the facts of the present case, it is crystal clear that no case is made out to refer the case of Indra Sawhney to a larger Bench. (9)Whether Gaikwad Commission Report has made out a case of extra-ordinary situation for grant of separate reservation H to Maratha community exceeding 50% limit ?

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222Copy pinpoint222. We have noticed above that majority judgment in Indra A Sawhney has laid down that reservation shall not exceed 50% as a rule. In the majority opinion, however, it was held that looking to the diversity of the country there may be some extra-ordinary situations where reservation in exceptional cases is made exceeding 50% limit. In this respect, We may again refer to paragraphs 809 and 810 of the judgment B of Indra Sawhney by which the above proposition of law was laid down. Paragraphs 809 and 810 are to the following effect: “809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%. C

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.”

223Copy pinpoint223. The second term of reference to the State Backward Classes Commission included a specific reference, i.e., “to define exceptional circumstances and/or extra-ordinary situations to be applied for the benefit of reservation in the present context”. The Gaikwad Commission has separately and elaborately considered the above term of reference. A separate Chapter, Chapter-X has been devoted in the Commission’s Report. The heading of the Chapter-X is “EXCEPTIONAL F CIRCUMSTANCES AND/OR EXTRA ORDINARY SITUATIONS”.

224Copy pinpoint224. We have already noticed the submission of Shri Mukul Rohtagi with reference to exceptional circumstances while considering the Ground No.10 as emphasized by him for referring the case to a G larger Bench. We have observed that the exceptional circumstances as indicated in paragraph 810 of Indra Sawhney were not exhaustive but illustrative. The Constitution Bench, however, has given indication of what could be the extra-ordinary circumstances for exceeding the limit of 50%. The Commission has noticed the majority opinion in Indra H

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A Sawhney. We may notice paragraph 234-Chapter X of the Report which is to the following effect: “234. The Constitutional provisions relating to the reservations, either under Article 15 or Article 16 of the Constitution do not prescribe percentage of reservation to be provided to each of the B backward classes i.e. Scheduled Castes, Scheduled Tribes and Backward Classes. However, reservations to be provided to the Scheduled Castes and Scheduled Tribes has already been provided by the Government of India, i.e. 15% Scheduled Castes and 7.5% for Scheduled Tribes. Excluding that 22.5% reservations, the existing Bus provisions for reservation for Backward Classes is C 27%. Though originally Article 15 and Article 16 of the 997 Constitution did not specify the percentage of the reservation for different classes, the amended provisions of Article 16(4A) and (4B) specify that the State Government is not prevented from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Article 16(4) or (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% reservation on total number of vacancies of that year. In Indra Sawhney’s case (supra), the Honourable the Supreme Court for the first time, by majority, specified a ceiling for total reservation of 50%. The Honourable the Supreme Court considered this issue while answering question Nos. 6(a), 6(b) and 6(c) formulated by it in the Judgment. The F questoins are produced herein under:- “6(A) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence? 6(b) Whether the 50% rule, if any, is confined to reservations made under Clause (4) of Article 16 or whether it takes in G all types of reservations that can be provided under Article 16? 6(c) Further while applying 50% rule, if any, whether an year should be taken as a unit or whether the total strength of the cadre should be looked to?” H

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The Honourable the Supreme Court in para 94A in answered the A questions Indra Sawhney’s case formulated by it stating that reservation contemplated in clause (4) of Article 16 of the Constitution shall not exceed 50%. In the same para the Honourable the Supreme Court has ruled that some relaxation in this TIRNITURE DIVIST strict rule may become imperative with B a caution. “In doing so extreme caution is to be exercised and a special case is to be made out”. The relevant passage from para 94A (of AIR) the judgment of the Honourable the Supreme Court in Indra Sawhney’s case majority view is reproduced and that runs as under: “While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”

225Copy pinpoint225. After noticing the above proposition of law the Commission proceeded to deal with the subject. In paragraph 234 the Commission E has noted the Constitution Bench judgment in M. Nagaraj & Ors. vs. Union of India & Ors. (supra) observing that this Court has again considered the aspect of ceiling of 50% reservation. The Commission, however, proceeded with an assumption that in Nagaraj this Court has ruled that for relaxation, i.e., 50%, there should be quantifiable and contemporary data. We may notice the exact words of the Commission F in paragraph 234 which is to the following effect: “The Honourable the Supreme Court has again considered this aspect of ceiling of 50% reservation in its next decision in M. Nagaraj & Ors. v. Union of India & Ors. Reported in (2006) 8 SCC 212, wherein the Honourable the Supreme Court G considered the validity of inserted clauses (4A) and (4B) by way of amendment to Article 16 of the Constitution. However, in Nagaraj, the Honourable the Supreme Court has ruled that for the relaxation i.e. a ceiling of 50% there should be quantifiable and contemporary data (Emphasis supplied).” H

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226Copy pinpoint226. The above view has again been reiterated by the Commission n paragraph 235 to the following effect: “235.......However, it is seen from Nagaraj that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to backwardness as required by Clause B (4) of Article 15 and Clause (4) of Article 16 of the Constitution.”

227Copy pinpoint227. From the above, it is clear that the Commission read the Constitution Bench judgment of this Court in Nagaraj laying down that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to the backwardness. The above reading of C Constitution Bench judgment by the Commission was wholly incorrect. We may again notice the judgment of M. Nagaraj in the above respect. M. Nagaraj was a case where Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4A) was challenged on the ground that the said provision is unconstitutional and violative of basic structure. Article 16(4A) which was inserted by the above Amendment provides: D “Article 16(4A). Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, E are not adequately represented in the services under the State.”

228Copy pinpoint228. The Constitution Bench proceeded to consider the submission raised by the petitioner challenging the constitutional validity of the constitutional provision. The Constitution Bench in Nagaraj has noticed the maximum limit of reservation in paragraphs 55 to 59. The Constitution F Bench held that majority opinion in Indra Sawhney has held that rule of 50% was a binding rule and not a mere rule of prudence. Paragraph 58 of the Constitution Bench judgment in Nagaraj is as follows: “58. However, in Indra Sawhney [1992 Supp (3) SCC 217 the majority held that the rule of 50% laid down in Balaji [AIR G 1963 SC 649] was a binding rule and not a mere rule of prudence.”

229Copy pinpoint229. In paragraph 107, the Constitution Bench observed: “107....If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of H

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efficiency which is held to be a constitutional limitation on the discretion of the State in making reservation as indicated by Article 335.....”

230Copy pinpoint230. The Constitution Bench noted its conclusion in paragraphs 121, 122 and 123. In paragraph 123 following has been laid down: “123. However, in this case, as stated above, the main issue concerns the “extent of reservation”. In this regard the State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

231Copy pinpoint231. The Constitution Bench in paragraph 123 held that provision of Article 16(4A) is an enabling provision and State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in the matters of promotion and however, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation. F

232Copy pinpoint232. The above observation regarding quantifiable data was in relation to enabling power of the State to grant reservation in promotion to the Scheduled Caste and Scheduled Tribes. It is further relevant to notice that in the last sentence of paragraph 123 it is stated: “It is made clear that even if the State has compelling reasons, as stated above, the G State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely”.

233Copy pinpoint233. The Constitution Bench, thus, in the above case clearly laid down that even reservation for promotion, ceiling of 50% limit cannot be H

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A breached. The Commission has completely erred in understanding the ratio of the judgment, when the Commission took the view that on the quantifiable data ceiling of 50% can be breached. There is no such ratio laid down by this Court in M. Nagaraj. Hence, the very basis of the Commission to proceed to examine quantifiable data for exceeding the limit of 50% is unfounded. B

234Copy pinpoint234. Paragraph 236 of the Report of the Commission contains a heading “QUANTIFIABLE DATA”. It is useful to extract the entire paragraph 236 which is to the following effect: “QUANTIFIABLE DATA: C

236. As per the Census of the year 2011 population of Scheduled Castes and Scheduled Tribes in the State of Maharashtra is 11,81% and 9.35% respectively. The percentage of Backward Classes, Maratha and Kunbi, have not been found to have been specified in the Census of the year 2011. On the instructions of the Government of Maharashtra, the Gokhale Institute of Politics and Economics, Pune, conducted Socio- Economic Caste Census. It was the survey of rural population in the State of Maharashtra. On the detailed survey the Gokhale Institute of Politics and Economics recorded the findings on specific percentage of the Maratha community with Kunbi community as 35.7%. Percentage of all the reserved Backward Classes to be 48.6%. The percentage of other Classes or the population, who have not disclosed their castes, is shown to be 15.7%, From this survey report though it relates to the rural area, total percentage of the exiting Backward Classes, Maratha and Kunbi, who claim to be backward, comes to 48.6% plus 35.7% equivalent to 84.3% of the total population. There is no dispute that large population of the Maratha and Kunbi castes as well as existing Backward Classes are inhabitants of the rural areas. 48.6% population of the existing reserved category including Scheduled Castes, G Scheduled Tribes and all Backward Classes have been already identified as socially and educationally backward. The Maratha caste has been identified socially, educationally and economically backward by this Commission. So as total 84.3% population can be said to be of backward classes.”

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235Copy pinpoint235. Regarding the above noted quantifiable data, the Commission A has recorded its reasons for reservation under Article 15(4) and 16(4) in paragraph 259. We extract here paragraph 259 to the following effect: “259. To sum up this Commission already found above on appreciation of evidence collected/produced before it that 80% to 85% of the population in the State of Maharashtra is backward. B According to this Commission to accommodate the 80% to 85% backward Population within a ceiling of 50% will be injustice to them and as such it would frustrate the very purpose of the reservation policy arising out of Article 15 and Article 16 of the Constitution. In the considered opinion of this Commission, this is C the extra ordinary situation, which has been mentioned in the 2nd Term of Reference and as required by Indra Sawhney. 80% to 85% backward population adverted to above speaks about quantifiable contemporary data, vide Nagaraj. If, accordingly, ceiling of 50% increased efficiency in administration could not be affected because all of them would compete. This Commission D record facts findings that as required by the 2nd Term of Reference there are not only exceptional circumstances but also extra ordinary situations, which need to be applied for the grant of the reservation in the present context in view of Clause (4) of Article 15 and Clause (4) of Article 16 of the Constitution.) This will enable the E Government of Maharashtra to make special provision for the advancement of the Maratha community, which is certainly socially and educationally backward class and ultimately that will enable the Government of Maharashtra to make provision for reservation of appointment or posts in favour of the Maratha community in the services under the State.” F

236Copy pinpoint236. It is clear that the entire basis of the Commission to exceed 50% limit is that since the population of backward class is between 80% to 85%, reservation to them within the ceiling 50% will be injustice to them.

237Copy pinpoint237. We may revert back to paragraph 810 where Indra Sawhney G has given illustration which illustration is regarding certain extra-ordinary situations. The exact words used in paragraph 810 are: “It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being H

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A out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”

238Copy pinpoint238. Shri Rohtagi had submitted that the test laid down in paragraph 810 is only geographical test which was an illustration. It is true that in Indra Sawhney the expression used was “far flung and remote areas” but the social test which was a part of the same sentence stated “the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them”. Thus, one of the social conditions in paragraph 810 is that being within the main stream of National Life, the case of Maratha does not satisfy the extra-ordinary situations as indicated in paragraph 810 of Indra Sawhney. The Marathas are in the main stream of the National Life. It is not even disputed that Marathas are politically dominant caste.

239Copy pinpoint239. This Court in several judgments has noticed that what can be the extra-ordinary situations as contemplated in paragraph 810 in few other cases. We have referred above the three-Judge Bench judgment in Union of India and others vs. Rakesh Kumar and others, (2010) E 4 SCC 50, where three-Judge Bench held that exceptional case of 50% ceiling can be in regard to Panchayats in scheduled areas. The above three-Judge Bench has also been approved and reiterated by the Constitution Bench of this Court in K.K. Krishnamurthi (supra). In the above cases this Court was examining the reservation in Panchayats. In the context of Part IX of the Constitution, 50% ceiling principle was F applied but exception was noticed.

240Copy pinpoint240. In the above context, we may also notice the paragraph 163 of the impugned judgment of the High Court where the High Court has also come to the conclusion that the Maratha has made out a case of extra-ordinary situation within the meaning of paragraph 610 of Indra G Sawhney’s case. The High Court in paragraph 163 of judgment made following observation: “163...We would curiously refer to the reports, which would disclose that it is for the first time in form of Gaikwad Commission the quantifiable data has been collected and in terms of Nagaraj, H

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the quantifiable data, inadequacy of representation are two key factors which would permit exceeding of reservation of 50% by the State. ….”

241Copy pinpoint241. The High Court has endorsed the opinion of the Commission that when the population of backward class is 85% if they would get only 50%, it would not be valid. In paragraph 165 of the impugned judgment following is the opinion of the High Court: “165....The percentage of other classes of population who have not disclosed their caste have been shown to be 15.7%. The Commission therefore concludes that though the survey report relates to rural area, the total percentage of existing backward classes, Maratha and kunbi, who claim to be backward comes to 48.6% + 35.7%, equivalent to 84.3% of the total population. The Commission has also made a reference to the census of the year 1872 which calculates the population of Shudras and the census report of 1872 from which the position emerge that more than 80% population was found backward in the census of 1872. The D commission categorizes this as an extra-ordinary situation since the majority of the unequals are living with the minority of the equals. The figures available on record on the basis of 2011 census disclose that the State population is about 11.24 crores out of which 3,68,83,000 is the population of OBC (VJNT, OBC SBC) The E statistics of Ministry of Social Justice and Empowerment, Government of India has given the State wise percentage of OBCs in India and for Maharashtra it is 33.8% whereas SC-ST is 22%. The Gaikwad commission has patil-sachin. ::: Uploaded on - 27/ 06/2019 ::: Downloaded on - 05/04/2021 16:43:36 ::: 433 Marata(J) final.doc therefore deduced that the population of Marathas is F 30%. Therefore, in terms of the population, if we look at the figures then the situation which emerges is that almost 85% of the population is of the backward classes and to suggest that if 85% of people are backward and they get only a reservation of 50%, it would be traversity of justice. When we speak of equality – equality G of status and opportunity, then whether this disparity would be referred to as achieving equality is the moot question. The situation of extra-ordinary circumstances as set out though by way of illustration in Indra Sawhney would thus get attracted and the theme of the Indian Constitution to achieve equality can be attained. H

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A Once we have accepted that the Maratha community is a backward class, then it is imperative on the part of the State to uplift the said community and if the State does so, and in extra ordinary circumstances, exceed the limit of 50%, we feel that this is an extra ordinary situation to cross the limit of 50%.”

242Copy pinpoint242. Again at page 453 of the judgment, the High Court reiterated that extra-ordinary situations have been culled out by the report since backward class is 85%, Maratha being 30%. Treating above to be extra- ordinary situation following observations have been made in paragraph 170: C “170...The extra-ordinary situations have been culled out as the report has declared that Maratha community comprise 30% of the population of the State and this figure is derived on the basis of quantifiable data. The extra-ordinary situation is therefore carved out for awarding an adequate representation to the Maratha community who is now declared socially, educationally and economically backward. Based on the population of 30%, Commission has arrived at a conclusion that the total percentage of State population which is entitled for the constitutional benefits and advantages as listed under Article 15(4) and Article 16(4) would be around 85% and this is a compelling extra-ordinary situation demanding extra-ordinary solution within the constitutional framework. ...”

243Copy pinpoint243. From the above, it is clear that both the Commission and the High Court treated the extra-ordinary situations with regard to exceeding 50% for granting separate reservation to Maratha, the fact that population of backward class is 85% and reservation limit is only 50%. The above extra-ordinary circumstances as opined by the Commission and approved by the High Court is not extra-ordinary situation as referred to in paragraph 810 of Indra Sawhney judgment. The Marathas are dominant forward class and are in the main stream of National life. The above situation is not an extra-ordinary situation contemplated by Indra G Sawhney judgment and both Commission and the High Court fell in error in accepting the above circumstances as extra-ordinary circumstance for exceeding the 50 % limit. At this stage, we may notice that what was said by Dr. Ambedkar in the Constituent Assembly debates dated 30.11.1948 while debating draft Article 10/3 (Article 16(4) of the H Constitution). Dr. Ambedkar by giving an illustration said :

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“Supposing, for instance, we were to concede in full the demand of those communities who have not been so far employed in the public services to the fullest extent,what would really happen is, we shall be completely destroying the first proposition upon which we are all agreed, namely, that there shall be an equality of opportunity. Let me give an illustration. Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent. of the total posts under the State and only 30 per cent. are retained as the unreserved. Could anybody say that the reservation of 30 per cent. As open to general competition would be satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. Therefore the seats to be reserved, if the reservation is to be consistent with sub-clause (1) of Article 10, must be confined to a minority of seats. It is then only that the first principle could find its place in the Constitution and effective in operation.”

244Copy pinpoint244. The illustration given by Dr. Ambedkar that supposing 70% posts are reserved and 30% may retain as unreserved, can anybody say that 30% as open to general competition would be satisfactory from point of view of giving effect to the first principle of equality, the answer given by Dr. Ambedkar was in negative. Thus, Constituent Assembly by giving illustration has already disapproved principle which is now propounded by the High Court. We cannot approve the view of the High court based on the same view taken by the Commission.

245Copy pinpoint245. In view of the foregoing discussion, we are of the considered opinion that neither the Gaikwad Commission’s report nor the judgment of the High Court has made out an extra-ordinary situation in the case of Maratha where ceiling of 50% can be exceeded. We have already noticed the relevant discussion and conclusion of the Commission in the above regard and we have found that the conclusions of the Commission are unsustainable. We, thus, hold that there is no case of extra-ordinary situation for exceeding the ceiling limit of 50% for grant of reservation to Maratha over and above 50% ceiling of reservation. (10)Whether the Act, 2018, as amended in 2019 granting separate reservation for Maratha Community by exceeding ceiling of 50 percent makes out exceptional circumstances as per the judgment of Indra Sawhney case? H

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246Copy pinpoint246. We have noticed above the provisions of the 2018 Act. In Section 2(j), the Maratha Community has been declared and included in the educationally and socially backward category and under Section 4(1), 16 percent (12 percent as per 2019 Amendment Act) of the total seats in educational institutions including private educational institutions, other than minority educational institutions are reserved and 16 percent (13 B percent as amended by 2019 Act) of total appointment in direct recruitment in public services and posts. Section 3(4) has further made it clear that nothing in the Act shall effect the reservation provided to other backward classes under 2001 Act and 2006 Act. The legislative history of 2018 enactment is necessary to be noticed to find out the C objects and reasons for the enactment.

247Copy pinpoint247. We have noted in detail various reports of National Backward commissions as well as State Backward Commissions which have repeatedly rejected the claim of Maratha to be included in Other Backward Communities. After receipt of Bapat Commission Report D which rejected the claim of Maratha to be Other Backward Classes, the State Government appointed a Committee under the chairmanship of a sitting Minister i.e. Narayan Rane Committee. On the basis of said Rane Committee report, the State enacted 2014, Act, constitutional validity of which Act was challenged in the High Court and was stayed by the E High Court vide its order dated 07.04.2015. During pendency of the writ petition, the State Government made a reference to the Maharashtra Backward Class Commission in June, 2017 and one of the term of the Reference was to the following effect: - “ii) defines the exceptional circumstances and extraordinary situations applied for the benefits of the reservation in the contemporary scenario.”

248Copy pinpoint248. The Maharashtra Backward Class Commission submitted its report in 15.11.2018, which report became the basis for 2018 enactment.

249Copy pinpoint249. The Statements of objects and reasons for 2018 enactment have been published in the Maharashtra Government Gazette dated 29.11.2018 publishing the bill No. 78(LXXVIII) of 2018. Paragraph 6 of the Statement of object and reasons notices the earlier 2014 Act and the stay by the High Court and further reference to the Commission. Paragraph 6 of the Statement of objects and reasons is as follows:- H

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“6. Thereafter, the Maharashtra State Reservation (of seats A for admission in educational institutions in the State and for appointments or posts in the public services under the State) for Educationally and Socially Backward Category (ESBC) Act, 2014 (Mah.I of 2015), for converting the said Ordinance into an Act of the State Legislature, was enacted on 9th January 2015. However, B the Constitutional validity of the said Act has been challenged before the Hon’ble High Court. The Hon’ble High Court has stayed the implementation of the said Act on 7th April, 2015. Thereafter, the State Government has requested the Maharashtra Backward Classes Commission in june 2017, to,- C (i) Determine Contemporary Criteria and parameters to be adopted in ascertaining the social, educational and economic backwardness of Marathas for extending benefit of reservation under the constitutional provision keeping in focus the various judgments of the courts, reservation laws and constitutional mandate; D

(ii) Define the exceptional circumstances and extra ordinary situation applied for the benefits of reservation in the contemporary scenario; (iii) Scrutinize and inspect the quantifiable data and other E information which the State has submitted to Hon. Court to investigate the backwardness of Maratha Community; (iv) Determine the representation of Marathas in the State Public Employment; (v) Ascertain the proportion of the population of the Maratha F Community in the State by collecting the information available under various sources.”

250Copy pinpoint250. Paragraph 8 of the Statement of objects and reasons further states that the Commission has submitted its report to the State Government on 15.11.2018. Paragraph 8 refers to the conclusion and G the findings of the Commission. The conclusions and findings of the Commission have been noticed in paragraph 8 of the Statement of Objects and reasons.

251Copy pinpoint251. The report of the Maharashtra State Backward Class Commission dated 15.11.2018 became the basis for granting separate H

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A reservation to the Maratha community by exceeding the 50 percent ceiling limit. We have already in detail has dealt the report of the Commission especially Chapter 10 where Commission dealt with extraordinary situation.

252Copy pinpoint252. The Government after considering the report, its conclusion and findings and recommendations formed the opinion for giving separate reservation to the Maratha community as socially and educationally backward classes (SEBC). Paragraph 9 of the statement of objects and reasons is as follows: - “9. The Government of Maharashtra has considered the report, conclusions, findings and recommendations of the said Commission. On the basis of the exhaustive study of the said Commission on various aspects regarding the Marathas, like public employment, education, social status, economical status, ratio of population, living conditions, small size of land holdings by families, percentage of suicide of farmers in the State, type of works done for living, migration of families, etc., analysed by data, the Government is of opinion that,- (a) The Maratha Community is socially and educationally backward and a backward class for the purposes of Article 15(4) and (5) and Article 16(4), on the basis of quantifiable data showing backwardness, inadequacy in representation by the said Commission; (b) Having regard to the exceptional circumstances and extraordinary situation generated on declaring Maratha as socially and educationally backward and their consequential entitlement to the reservations benefits and also having regard to the backward class communities already included in the OBC list, if abruptly asked to share their well established entitlement of reservation with a 30% of Maratha G citizenry, it would be a catastrophic scenario creating an extraordinary situation and exceptional circumstances, which if not swiftly and judiciously addressed, may lead to unwarranted repercussions in the well harmonious co-existence in the State, it is expedient to relax for the percentage of reservation H

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by exceeding the limit of 50%, for advancement of A them, without disturbing the existing fifty-two percent reservation currently applicable in the State, only for those who are not in creamy layer; (c) It is expedient to provide for 16 percent of reservation to such category; B (d) It is expedient to make special provision, by law, or the advancement of any Socially and Educationally Backward Classes of Citizens, in so far as admission to educational institutions, other than the minority educational institutions, is concerned but such special provisions shall not include the reservation of seats for election to the Village Panchayat Samitis, Zilla Parishads, Municipal Councils, Municipal Corporations, etc; (e) It is expedient to provide for reservation to such classes in admissions to educational institutions including private educational institutions whether aided or unaided by the State, other than minority educational institutions referred to in clause (1) of Article 30 of the Constitution; and in appointments in public services and posts under the State, excluding reservations in favour of Scheduled Tribes candidates in the Scheduled Areas of the State under the Fifth Schedule to the Constitution of India, as per the notification issued on the 9th June 2014 in this behalf; (f) By providing reservation to the Maratha Community, F the efficiency in administration will not be affected, since the Government is not diluting the standard of educational qualification for direct recruitment for this classes and there will definitely be competition amongst them for such recruitment; and G (g) To enact a suitable law for the above purposes. In view of the above, the State Government is of the opinion that the persons belonging to such category below the Creamy layer need special help to advance further, in the contemporary period, so H

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A that they can move to a stage of equality with the advanced sections of the society, wherefrom they can proceed on their own.”

253Copy pinpoint253. The statement and object of the bill clearly indicates that the State has formed the opinion on the basis of the report of the Commissions B and had accepted the reasons given by the Commission holding that extraordinary circumstances for exceeding the ceiling limit is made out. We have already in detail analyze and noticed the report of the Commission and have held that no extraordinary circumstances have been made out on the basis of reasoning given in the report. While the foundation itself is unsustainable, the formation of opinion by the State C Government to grant separate reservation to the Marathas exceeding 50 percent limit is unsustainable.

254Copy pinpoint254. It is well settled that all legislative Act and executive acts of the Government have to comply with the Fundamental Rights. The State’s legislative or any executive action passed in violation of Fundamental D Rights is ultra vires to the Constitution. The 50 percent ceiling limit for reservation laid down by Indra Sawhney case is on the basis of principle of equality as enshrined in Article 16 of the Constitution. In paragraph 808, Indra Sawhney laid down: - “808. It needs no emphasis to say that the principle aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being G “confined to a minority of seats” (See his speech in Constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart H from that concept.”