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

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255Copy pinpoint255. The Constitution Bench of this Court in M. Nagaraj (Supra) A has reiterated that ceiling limit on reservation fixed at 50 percent is to preserve equality. In paragraphs 111 and 114, following was laid down: - “111. The petitioners submitted that equality has been recognized to be a basic feature of our Constitution. To preserve equality, a balance was struck in Indra Sawhney so as to ensure B that the basic structure of Articles 14, 15 and 16 remains intact and at the same time social upliftment, as envisaged by the Constitution, stood achieved. In order to balance and structure the equality, a ceiling limit on reservation was fixed at 50% of the cadre strength; reservation was confined to initial recruitment and was not extended to promotion... C

114. In Indra Sawhney, the equality which was protected by the rule of 50%, was by balancing the rights of the general category vis-à-vis the rights of BCs en bloc consisting of OBCs, SCs and STs...” D

256Copy pinpoint256. We have found that no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 percent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any exceptional circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment E ultra vires.

257Copy pinpoint257. We thus conclude that the Act, 2018 as amended in 2019, granting separate reservation for Maratha community has not made out any exceptional circumstances to exceed the ceiling of 50 percent reservation. F (11) Gaikwad Commission Report – a scrutiny

258Copy pinpoint258. Shri Pradeep Sancheti, learned senior counsel, appearing for the appellant elaborating his submissions has questioned the Gaikwad Commission’s Report on numerous grounds. Shri Patwalia, learned senior G counsel, appearing for the State of Maharashtra has refuted the challenge.

259Copy pinpoint259. Shri Sancheti submits that judicial scrutiny of a quantifiable data claimed by the State is an essential constitutional safeguard. He submits that though the Court has to look into the report with judicial deference but judicial review is permissible on several counts. A report H

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A which violates the constitutional principle and rule of law can very well be interfered with in exercise of judicial review. Shri Sancheti submits that three National Backward Classes Commissions as well as three State Backward Classes Commissions for the last 60 years have considered the claim of Marathas to be included in Other Backward Community which claim was repeatedly negatived. He submits that the report of National Backward Classes Commissions and State Backward Classes Commissions could not have been ignored by Gaikward Commission in the manner it has dealt with the earlier reports. Shri Sancheti submits that the National Backward Classes Commission as well as the State Backward Classes Commission considered the contemporaneous data and came to a conclusion at a particular time. Gaikward Commission which was appointed in 2017 had no jurisdiction to pronounce that Maratha was backward community from the beginning and all earlier reports are faulty. Shri Sancheti submits that Maratha community is a most dominant community in the State of Maharashtra weilding substantial political power. The majority of Legislature belongs to Maratha community, out of 19 Chief Ministers of the Maharashtra State, 13 Chief Ministers were from Maratha community. Out of 25 Medical Colleges in Maharashtra 17 Medical Colleges are founded/ owned by the people belonging to Maratha community. In 24 of the 31 District Central Cooperative Banks are occupied by the persons from E Martha community. Out of the functioning 161 Cooperative Sugar Factories in Maharashtra, in 86 Sugar Factories persons from Maratha community are the Chairman. The Class which is politically so dominant, cannot be said to be suffering from social backwardness.

260Copy pinpoint260. Shri Sancheti further submits that survey by the Commission, F data result, analysis therein suffers from various inherent flaws. The sample survey conducted by the Commission is unscientific and cannot be taken as respective sample. The sample size is very small. Only 950 persons were surveyed from Urban areas. He submits that Commission was loaded with members belonging to the Maratha community. The Agency for survey (Data collections) was selected without tendering G process. Out of five organisations that conducted the survey two were headed by persons from Maratha community. The Maratha community has adequate representation in public service which fact is apparent from data collected by the Commission itself. On the basis of data collection by the Commission no conclusion could have been arrived H

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that Maratha community is not adequately represented in services in the A State.

261Copy pinpoint261. Shri Patwalia refuting the submissions of the learned counsel for the appellant submits that Gaikwad Commission has considered conclusions arrived by all earlier Commissions and thereafter it had recorded its conclusion. The Commission before proceeding further has B laid down procedure for investigation. The Commission decided to conduct survey as to collect information in respect of the social and educational backwardness. The Commission has surveyed to collect information of all families in two villages in each District and the Commission decided to collect information by selecting one Municipal Corporation and one Municipal Council from each of six regions of the State of Maharashtra. C For the purpose of sample survey five different Agencies have been nominated. The Commission also conducted public hearing, collected representations from persons, numbering 195174. Out of representations, 193651 persons are in favour of reservation to Maratha whereas 1523 were in favour of reservation of Maratha community by creating separate percentage. The Commission also recorded evidence, obtained information from the Government departments and other organisations, Universities and after fixing parameters allocated 10 marks for socially backward class, 8 marks out of 25 marks has been allocated for educational backwardness, 7 marks to the economically backward class and after following the marking system held that Maratha community has obtained more that 12.5 marks and has satisfied that it is socially, educationally and economically backward class. 784 resolutions of Gram Panchayats were in favour of granting reservation of OBC. It is submitted that the representation of Maratha community in the public services is not equivalent to their population which is 30%. Hence, they were entitled to separate reservation to make their representation as per their population.

262Copy pinpoint262. Shri Patwalia further submits that scope of judicial review of a report of the Commission is too limited. This Court shall not substitute its opinion in place of the opinion arrived by the Commission. He submits that parameters of judicial review have been laid down in Indra Sawhney’s case. The Court shall not sit in appeal over the opinion of experts. The report of Gaikwad Commission is based on sample study of Maratha community. It is on the basis of the report of the Gaikwad Commission that State Government formed opinion that Maratha H

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A community is a socially and educationally backward class and deserves a separate reservation in recognition of their legitimate claim. Inclusion of Maratha community in already existing OBC community for whom 19% reservation is allowed shall have adverse effect on the OBC who are already enjoying the reservation, hence decision was taken to grant separate reservation. B

263Copy pinpoint263. We have considered the submissions of the parties and perused the records. Before proceeding further, we need to notice the parameters of judicial review in such cases.

264Copy pinpoint264. We may first notice the Constitution Bench judgment of this C Court in M.R. Balaji vs. The State of Mysore and others, AIR (1963) SC 649. In the above case, this Court had occasion to consider Nagan Gowda Committee which has submitted a report in 1961 and made a recommendation for reservation. In pursuance of the report, the State of Mysore had issued an order dated 31.07.1961 deciding to reserve 15% seats for Scheduled Castes and 3% for Scheduled Tribes and 50% D for backward class totaling to 68% of seats available for admission to the Engineering and Medical Colleges and to other technical institutions in the State. The Constitution Bench elaborated the extent of judicial review to an executive action. In paragraph 35 of the judgment, the Constitution Bench laid down following: E “35. The petitioners contend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power conferred on the State by Article 15(4). This argument is well-founded, and must be upheld. When it is said about an executive action that it is a F fraud on the Constitution, it does not necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra vires the State’s authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized

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and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution. ….” 264(a). From the above, it is clear that what was emphasised by the Court is that it is the substance of the matter which has to be examined and not its form, appearance, or the cloak, or the veil of the executive action has to be carefully scrutinised.

265Copy pinpoint265. The next judgment which we need to notice is the judgment of this Court in The State of Andhra Pradesh and others vs. U.S.V. Balram, etc., (1972) 1 SCC 660. The above case is also on basis of the Commission’s report. The Commission for the backward classes in the State of Andhra Pradesh appointed by the State Government submitted a report. The High Court held the enumeration of the backward classes as well as reservation invalid. The State of Andhra Pradesh filed the appeal. The grounds of challenge were noticed in Paragraph 77 of the judgment. In paragraph 83-A of the judgment this Court observed: that the question to be answered is whether the materials relied in the report are not adequate or sufficient to support its conclusion. Following have been laid down in paragraph 83-A: “83-A. … But, in our opinion, the question is whether on the materials collected by the Commission and referred to in its report, can it be stated that those materials are not adequate or sufficient to support its conclusion that the persons mentioned in the list as Backward Classes are socially and educationally backward? .... ...Therefore, the proper approach, in our opinion, should be to see whether the relevant data and materials referred to in the report of the Commission justify its conclusions. ….”

266Copy pinpoint266. Thus, one of the parameters of scrutiny of a Commission’s report is that whether on the basis of data and materials referred to in the report whether conclusions arrived by the Commission are justified. G

267Copy pinpoint267. In Indra Sawhney, one of the questions framed by the Constitution Bench to answer was question No.9, which is to the following fact: “9. Whether the extent of judicial review is restricted with regard to the identification of Backward Classes and the H

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A percentage of reservations made for such classes to a demonstrably perverse identification or a demonstrably unreasonable percentage?”

268Copy pinpoint268. In paragraph 842 of Indra Sawhney following was laid down: B “842. It is enough to say on this question that there is no particular or special standard of judicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4). The extent and scope of judicial scrutiny depends upon the nature of the subject-matter, the nature of the right affected, the character C of the legal and constitutional provisions applicable and so on. The acts and orders of the State made under Article 16(4) do not enjoy any particular kind of immunity. At the same time, we must say that court would normally extend due deference to the judgment and discretion of the executive — a co-equal wing — in these matters. .....” D

269Copy pinpoint269. In paragraph 798, it was held by the Constitution Bench in Indra Sawhney that opinion formed with respect to grant of reservation is not beyond judicial scrutiny altogether. The Constitution Bench referred to an earlier judgment of this Court in Barium Chemicals v. Company Law Board, AIR 1967 SC 295. In the above regard paragraph 798 is E extracted for ready reference: “798. …It does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within subjective satisfaction of the executive are well and extensively stated in Barium F Chemicals v. Company Law Board [1966 Supp SCR 311 : AIR 1967 SC 295] which need not be repeated here. Suffice it to mention that the said principles apply equally in the case of a constitutional provision like Article 16(4) which expressly places the particular fact (inadequate representation) within the subjective G judgment of the State/executive.”

270Copy pinpoint270. Indra Sawhney having referred to the judgment of this Court in Barium Chemicals (supra) for the scope and reach of judicial scrutiny. We need to refer the test enunciated in Barium Chemicals. The Constitution Bench in Barium Chemicals had occasion to consider the expression “if in the opinion of the Central Government occurring in H

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Section 237 of Companies Act, 1956”. Justice Hidayatullah laid down that no doubt the formation of opinion is subjective but the existence of the circumstances relevant to the inference as the sine quo non for action must be demonstrable. Following observations were made in paragraph 27: “27. …No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstances leading to an inference of the kind contemplated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out. As my brother Shelat has put it trenchantly: C

“It is not reasonable to say that the clause permitted the Government to say that it has formed the opinion on circumstances which it thinks exist….” Since the existence of “circumstances” is a condition fundamental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie.”

271Copy pinpoint271. Justice Shelat with whom Justice Hidayatullah has agreed in paragraph 63 laid down following: “63. .....Therefore, the words, “reason to believe” or “in the opinion of” do not always lead to the construction that the process of entertaining “reason to believe” or “the opinion” is an altogether subjective process not lending itself even to a limited scrutiny by the court that such “a reason to believe” or “opinion” was not formed on relevant facts or within the limits or as Lord Redcliff F and Lord Reid called the restraints of the statute as an alternative safeguard to rules of natural justice where the function is administrative.”

272Copy pinpoint272. Dr. Rajiv Dhavan, learned senior counsel, during his submission has contended that Indra Sawhney in its judgment has relied G on a very weak test. He contended that the constitutional reservations are required to be subjected to strict scrutiny tests.

273Copy pinpoint273. We may also notice two-Judge Bench judgment of this Court in B.K. Pavitra and others vs. Union of India and others, (2019) 16 SCC 129, where this Court had after referring to earlier judgment H

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A laid down that Committee/commission has carried out an exercise for collecting data, the Court must be circumspect in exercising the power of judicial review to re-evaluate the factual material on record.

274Copy pinpoint274. We may also notice a recent judgment of this Court in Mukesh Kumar and another vs. State of Uttarakhand and others, (2020) 3 B SCC 1, in which one of us Justice L. Nageswara Rao speaking for the Bench laid down following in paragraph 13: “13. .....The Court should show due deference to the opinion of the State which does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of C judicial scrutiny in matters within the subjective satisfaction of the executive are extensively stated in Barium Chemicals Ltd. v. Company Law Board [Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295] , which need not be reiterated.”

275Copy pinpoint275. The grant of reservation under Article 15(4) or 16(4) either by an executive order of a State or legislative measures are Constitutional measures which are contemplated to fulfill the principle of equality. The measures taken under Article 15(4) and 16(4) thus, can be examined as to whether they violate any constitutional principle, are in conformity with the rights under Article 14, 15 and 16 of the Constitution. The scrutiny of measures taken by the State either executive or legislative, thus, has to pass test of the constitutional scrutiny. It is true that the Court has to look into the report of the Commission or Committee with deference but scrutiny to the extent as to whether any constitutional principle has been violated or any constitutional requirement has not been taken into consideration is fully permissible. As laid down in V. Balram case (supra) the judicial scrutiny is also permissible as to whether from the material collected by the Commission or committee the conclusion on which the Commission has arrived is permissible and reasonable. We are conscious of the limitation on the Court’s scrutiny regarding factual data and materials collected by the Court. We without doubting the manner and procedure of collecting the data shall proceed to examine the report on the strength of facts, materials, and data collected by the Commission. (12)Whether the data of Marathas in public employment as found out by Gaikwad Commission makes out cases for grant of reservation under Article 16(4) of the Constitution of India H to Maratha community?

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276Copy pinpoint276. The reservation under Article 16(4) of the Constitution is enabling power of the State to make any provision for reservation of appointment or posts in favour of other backward class of citizens who in the opinion of the State is not adequately represented in the services under the State. The conditions precedent for exercise of power under Article 16(4) is that the backward class is not adequately represented in the services under the State.

277Copy pinpoint277. The Constitution Bench of this Court in Indra Sawhney while elaborating on Article 16(4) has held that clause (4) of Article 16 speaks of adequate representation and not proportionate representation in paragraph 807: - C “807. We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Article 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant...”

278Copy pinpoint278. The objective behind clause (4) of Article 16 is sharing the power by those backward classes of the society who had no opportunities in the past to be part of the State services or to share the power of the State. Indra Sawhney has noted the above objective in paragraph 694 F of the judgment (by Justice Jeevan Reddy), which is to the following effect: - “694. The above material makes it amply clear that the objective behind clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively G monopolized by the upper castes i.e., a few communities, was now sought to be made broad-based. The backward communities who were till then kept out of apparatus of power, were sought to be inducted there into and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is H

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A empowerment of the deprived backward communities – to give them a share in the administrative apparatus and in the governance of the community.”

279Copy pinpoint279. The State, when provides reservation under Article 16(4) by executive action or by legislation, condition precedent, that the backward B class is not adequately represented in the service has to be fulfilled. The Constitution Bench in M.Nagaraj (Supra) has laid down following in paragraph 102:- “102...If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article C 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation...”

280Copy pinpoint280. Further in paragraph 107, M.Nagaraj laid down following:- “107...As long as the boundaries mentioned in Article 16(4), D namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16(4-A) and 16(4-B) as controlling factors, we cannot attribute constitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the controlling factors then excessiveness comes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of “guided power”. We may once again repeat that equality is not violated by mere conferment of power but it is breached by arbitrary exercise of the power conferred.”

281Copy pinpoint281. The word ‘adequate’ is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in main stream and they are to be enabled to share power of the State by affirmative action. To be part of public service, as accepted by the Society of today, is to attain social status and play a role in governance. The governance of the State is through service personnel who play a key role in implementing government policies, its obligation and duties. The State for exercising its enabling power to grant reservation under Article H

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16(4) has to identify inadequacy in representation of backward class who is not adequately represented. For finding out adequate representation, the representation of backward class has to be contrasted with representation of other classes including forward classes. It is a relative term made in reference to representation of backward class, other caste and communities in public services. The Maratha community is only one community among the numerous castes and communities in the State of Maharashtra. The principal caste and communities in the State of Maharashtra consists of Scheduled Castes/Scheduled Tribes, de-notified tribes, nomadic tribes (B, C and D), special backward category and other backward classes, general categories and the minorities. C

282Copy pinpoint282. A large number of castes and communities are included in the above class of castes. We may refer to number of caste and communities included in different groups. Few details are on the record: SC (59), ST (47) and OBC (348).

283Copy pinpoint283. The above details indicate that in a rough estimate in the D State of Maharashtra, there are more than 500 castes and communities which are living in the State and earning their livelihood.

284Copy pinpoint284. For identifying inadequacy of one particular class in public services, a balance has to be struck by the State, objective being all backward classes which include Scheduled Caste, Scheduled Tribe to have representation in the public services. The State cannot take any measure which violates the balance. The expression ‘inadequacy’ has to be understood in above manner.

285Copy pinpoint285. Now we proceed to look into the report of Gaikwad Commission which has separately in detail in Chapter IX dealt with the subject “inadequacy of Marathas in the services under the State.”

286Copy pinpoint286. The Commission in paragraph 214(b) of the report states: - “214(b). The information regarding recruitment status of all the Reserved Classes and Open Categories in the services under the State has been sought from the State Government and other state agencies...”

287Copy pinpoint287. The Commission was well aware of the Constitutional conditions stipulated to be complied by the State for reserving the posts H

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A in favour of backward class of citizens which is clear from what has been stated in paragraph 215 which for ready reference is extracted as below: -

“215. The three Constitutional conditions stipulated to be compiled by State for reserving the posts in favour of any B Backward Class of Citizens in the Public Services under or controlled by the State as also confirmed to be non-negotiable by the judicial pronouncement from time to time are as under: -

i) If such Backward Class is not adequately C represented in the services under the State.

ii) The total reservation should not exceed 50% unless there are extra ordinary and compelling circumstances which should be demonstrated and justified by a quantifiable data. D iii) Such reservation should be consistent with the maintenance of efficiency in the administration.”

288Copy pinpoint288. The Commission from paragraph 214 to 219 have noticed the various information received from the government and position of E different classes of society in open category and reserved category in different services. Table A deals with strength of Marathas in Government/Public Services/PRIs/ULBs in the State. Table B deals with number of Marathas and others class and communities including open category in Central services namely IAS, IPS, IFS and Table C deals with position of employees and officers in Mantralaya Cadre. The tables F A and C enumerated the details grade wise from Grade-A to Grade-D. We proceed to examine the issue on the basis of facts and figures compiled by the Commission obtained from State and other sources. The figures compiled relates as on 01.08.2018. Figures having obtained from the State, there is no question of doubting the facts and G figures compiled by the Commission.

289Copy pinpoint289. Table A is part of paragraph 219 of the report. We need to extract entire table A for appreciating the question.

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Table A: Strength of Marathas in Government/Public A Services/PRIs/ULBs in the State S. Grad Sanctio Posts Vaca Post Post Posts Posts Posts Posts Posts Posts Posts Posts Posts N e ned filled nt sanctio filled filled filled filled filled filled filled filled filled filled o of posts in as posts ned for for from from from from from from from from from servi on open open Marat SCs STs Vimu Nomadic Noma Noma other Specia ces 01/08 categor categ ha kta Tribe dic dic backw l /18 y ory class Jati (NT Tribe Tribe ard backw from (VJ B) (NT (NT class ard out of open A) C) D) (OBC) class (SBC) B catego ry posts 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 1 Grad 83532 49190 3434 42669 28048 9321 676 282 142 111 138 911 440 232 eA 2 (11.16% 5 2 2 6 3(1.66% (1. 0(5.27%)4(2.78%) ) (8.16%) (3. ((1.7%) (1. ) 09%) 38%) 34%) 2 Grad 83425 59504 2392 44527 31193 9057 9038 3980(4.7 1976 1693(2.0 2235 151 637 1500( 1.8 eB 1 (10.86 (10.83 7%) (2.37 3%) (2.68 3(1.81% 6(7.64%)0%)

3 Grad 952410 78340 1690 448575 41338 %) %) 15322 97215 66155 %) 23145 20136 %) ) 25967 174 100 196 197 C eC 7 03 1 4 (10.21 (6.95%) (2.43 (2.11%) (2.73 77 (10.52%)35 (16.09 %) %) %) (1. (2.07%) %) 84%) 4 Grad 301385 19957 1018 137299 99592 36387 30369 17282 5671 5588(1.8 6248 34 24999 6342 eD 0 15 (12.07 (10.08 (5.73%) (1.88 5%) (2. 79 (8.29%) (2. %) %) %) 07%) (1. 10%) 15%) Total 142075 10916 3290 673070 57221 20798 14338 90239 32214 28533 35833 23380 135971 29 2 71 81 4 9 7 901 Ave 14.64 10.09 6.35 2.27 2.01 2.52 1.65 9.57 2.10 % D

290Copy pinpoint290. The relevant figures pertaining to posts filled as on 01.08.2018, includes posts filled from open category, posts filled from Maratha classes from out of open category posts, posts filled from SCs, posts filled from STs, posts filled from Vimukt Jati(VJA), posts filled from Nomadic Tribes E NT-B, posts filled from Nomadic Tribes NT-C,NT-D and posts filled from the backward classes (OBC) and posts filled from special backward classes(SBC). The above figures correctly represent the representation of different classes in public services.

291Copy pinpoint291. Now, we take the representation of Marathas grade wise as reflected by Table A. F

GRADE-A

292Copy pinpoint292. Posts filled are 49,190 out of which open category posts are 28,048 and posts filled from Maratha classes are 9,321. The Maratha Community obviously has been competing in the open category and has G obtained the post as open category candidates. The Chart also mentioned below each class the percentage against the column of posts filled from Maratha class, percentage 11.16% has been mentioned. Similarly, different percentage has been mentioned against all other classes. When we take the total number of posts, posts filled for open category, it is H

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A mentioned as 28,048 out of which Marathas are 9,321. When we calculate the percentage of Maratha representation out of the open category filled post, percentage comes out to 33.23 percent. Thus, the correct percentage of Maratha out of the open category post is 33.23 percent which indicates that more than 33 percent of the open category post has been bagged by Maratha. In Maharashtra while considering the status of reservation, we have noticed that 52 percent posts are reserved for different categories and only 48 percent posts are available for open category. Out of 48 percent posts available for open category, Marathas have obtained 33.23 percent. The percentage given by the Commission in below Maratha class i.e. 11.86% is obviously wrong and erroneous. The Maratha who have been competing in open category cannot claim any post in the reserved category of 52 percent. Thus, the representation has to be computed taking into the seats of open category. Similarly, while computing the percentage of Marathas in Grade B, C and D, similar mistakes have been committed by the Commission. In Grade-B, total posts filled from open category were 31193 out of which D Marathas were 9057, percentage of which comes out to 29.03 percent. In Grade-C, total posts filled from open category were 4,13,381 out of which Marathas were 1,53,224, percentage of which comes out to 37.06 percent and for Grade-D, total posts filled form open category were 99592 out of which Marathas were 36387, percentage of which comes E out to 36.53 percent.

293Copy pinpoint293. A comparative chart of open category seats which are filled, number of posts of Maratha community and percentage in the posts is as follows: -

294Copy pinpoint294. The above representation of Marathas in public services in Grade-A, B, C and D are adequate and satisfactory. One community bagging such number of posts in public services is a matter of pride for the community and its representation in no manner can be said to not H adequate in public services. The Constitutional pre-condition that

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backward class is not adequately represented is not fulfilled. The State A Government has formed opinion on the basis of the above figures submitted by the Gaikwad Commission. The opinion of the State Government being based on the report, not fulfilling the Constitutional requirement for granting reservation to Maratha community becomes unsustainable. B

295Copy pinpoint295. Now we also look into Table B and C given in paragraphs 220 and 224 are as follows:- Table B

Table C: Mantralaya Cadres E

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296Copy pinpoint296. Table B contains all details including posts filled from open category, posts filled from Maratha officers. Taking the post of IAS in the open category filled are 161. Maratha IAS officers are 25, percentage of which comes to 15.52 percent. Similarly, in IPS out of 140 filled up posts, Marathas are 39, percentage of which comes to 27.85 percent and similarly, in IFS, out of 89, 16 were Marathas, percentage of which comes to 17.97 percent.

297Copy pinpoint297. With regard to percentage mentioned in each column, error has been committed by the Commission in reflecting less percentage which is incorrect and erroneous. Following is a tabular chart of posts filled in open category, posts filled by Maratha and percentage is as follows: - Services No. of open category No. of filled from Percentage of Maratha in posts filled Maratha Class open category post. IAS 161 25 15.52%

IPS 140 39 27.85%

IFS 89 16 17.97% D

298Copy pinpoint298. Now, we come to Table C i.e. Mantralaya Cadres. Table C also contains the details of posts filled from open category and posts filled from Maratha category in Grade-A, B, C and D. For example, Grade-A posts filled from open category are 248 out of which Marathas E are 93, percentage of which comes out to 37.5 percent.

299Copy pinpoint299. Similarly, in Grade-B, posts filled from open category are 793 out of which Marathas are 415, percentage of which comes to 52.33 percent.

300Copy pinpoint300. For Grade-C, posts filled from open category are 808 out of F which Marathas are 421, percentage of which comes to 52.10 percent.

301Copy pinpoint301. For Grade-D, posts filled from open category are 333, out of which 185 are Marathas, percentage of which comes to 55.55 percent.

302Copy pinpoint302. The tabular chart for posts filled in open category, posts filled by Marathas and percentage is as follows: - G

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303Copy pinpoint303. All the three tables A, B and C and percentage of Marathas A who have competed from open category make it abundantly clear that they are adequately represented in the services. The Commission although noted all the figures correctly in all the columns but committed error in computing the percentage adding posts available for open category as well as posts available for reserved categories. Maratha cannot claim to B compete for the reserved category posts; hence, there is no question of computing their representation including the reserved category posts. The representation of Marathas has to be against open category posts, hence, their percentage has to be determined as compared to total open category filled posts, and the representation of Marathas in most of the Grades is above 30 percent. This is the basic error committed by the C Commission in computing the percentage due to which it fell in error in finding their representation in services inadequate.

304Copy pinpoint304. There is one more fundamental error which has been committed by the Commission. The Constitution pre-condition for providing reservation as mandated by Article 16(4) is that the backward D class is not adequately represented in the public services. The Commission labored under misconception that unless Maratha community is not represented equivalent to its proportion, it is not adequately represented. We may notice what has been said by the Commission in paragraph 219 while recording its conclusion emerging from the analysis of information contained in Table A,B,C and D. In paragraph 219(c), the Commission E states: - “219(C)...The obvious conclusion that emerges from the above information is that in none of the four grades the strength of Maratha Class employees is touching the proportion to their population in the State which is based on various sources is estimated at an average 30%. So also, their presence in administration is more at the lower grades of “C” and “D” and have a comparatively lesser existence and role in decision making levels of State administration in “A” and “B” grades...”

305Copy pinpoint305. Indra Sawhney has categorically held that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation. The Commission thus proceeds to examine the entitlement under Article 16(4) on the concept of proportionate representation in the State services which is a fundamental error committed by the Commission. H

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306Copy pinpoint306. The Government committed an error in accepting the recommendation without scrutinizing the report with regard to correct percentage of representation of Marathas in services. The constitutional precondition as mandated by Article 16(4) being not fulfilled with regard to Maratha class, both the Gaikwad Commission’s report and consequential legislation are unsustainable. We thus hold that Maratha B class was not entitled for any reservation under Article 16(4) and grant of reservation under Article 16(4) is unconstitutional and cannot be sustained. (13)Social and Educational Backwardness of Maratha Community C

307Copy pinpoint307. We have noted above that three National Backward Classes Commissions and three State Backward Classes Commissions considered the claim of Maratha community to be included in the other backward community but all Commissions rejected such claim rather they were held to be belonging to forward community. The first National D Backward Classes Commission on 30.03.1955, i.e., Kaka Kalelkar Commission did not include Maratha commission in the list of backward communities. The Commission observed: “In Maharashtra, besides the Brahman it is the Maratha who claimed to be the ruling community in the villages and the Prabhu E that dominated all other communities.

308Copy pinpoint308. The second National Backward Classes Commission, i.e., Mandal Commission in its report included Maratha community as forward Hindu community. The National Commission on Backward Classes in the year 2000 elaborately examined the claim of Maratha community to F be included in other backward class. The entire Commission heard the claim of Maratha, including the members of State Backward Classes Commission representing the claim of Maratha community. The National Backward Classes commission held that Maratha community is an advanced community of the society and it cannot be included with Kunbi G under separate entity of its own. We may extract paragraphs 18, 19 and 22 of the Commission’s report which are to the following effect: “18. A community with a history of such origin and close association with the ruling classes, a community, many of whose members, from its inception enjoyed important economic and political rights and positions of power and influence and eventually became rulers H

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and members of ruling classes at different levels cannot in any A way be thought to have suffered any social disadvantages. The Bench is aware that in what is identified as a ruling class/caste, every member of it does not rule, but the fact that those who rule come from a distinct caste community imparts a certain amount of prestige and self-confidence even to those from the same caste/ B community who personally belong to the ruling functionaries and to the totality of that caste/community. It is significant to note that Marathas have sought and received recognition of as of Kshatriya Varna category and therefore does not secure them status or caste upgradation Examples are Vanniakula Kshatriya in Tamil Nadu, the adoption of the umbrella name “Kshatriya” by all BCs in C Gujarat, Paundra- Kshatriya (an SC) in West Bengal and so on. But no community which is recognized generally, i.e. by the rest of the society as of “Kshatriya” category and correctly finds place in a BC list.

19. The modern history of Maharashtra is witness to the continued D dominance of Marathas in its society and polity as evident from the fact, for example, that in the post-Independence period, the community provided the largest number of Chief Ministers. During the full Bench hearing on 14.12.99, the Bench had put the question to the representatives of the Maratha Community as to why despite there being so many Chief Ministers and important E Ministers in the State, some of whom also became important Ministers in the Centre, none of them got or moved to get Marathas included in the list of BCs is eloquent testimony not only of the fact that Marathas are not a backward class but also of the wisdom and objectivity of these Chief Ministers. The only ground raised by the representatives of the community in support of their claim for inclusion in the list of BCs what the fact of the origin of Marathas from Kunbis and the alleged use of the name Maratha by some members of Kunbi caste in some areas of the State. The Bench is of the view that since there, undoubtedly, is a distinct class/ community Called “Maratha” and since it is obviously an advanced community in society and polity as already noted, it cannot be included in the list of Backward Classes. The Bench cannot accept the claim of the representatives of the community that many known Maratha leaders including one whose name they mentioned have H

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A got caste certificates as “Kunbi” as a valid ground for inclusion of Marathas in the list of BCs with Kunbis. The Bench has no ground to believe that any known Maratha leaders would have sought such certificates, nor have those who have made this allegations presented any evidence in support of this claim. But even if, for argument’s sake, claim or argument is it does not prove that B Maratha is the same as Kunbi or synonym of Kunbi. Leaving aside the allegations made by some of the representatives of the community, the Bench is aware that some shortsighted individuals belonging to different non-backward castes unfortunately resort to seeking and securing fake caste certificates and in the context of the well-known qualities of India’s administrative system, elements are not rare which entertain such requests and deliberately issue false caste certificates. This menace, like different forms of corruption, has become more and more threatening. In certain Advices, the Commission has advised the Central and State Governments how this menace could be extirpated. But false caste-certificates and false caste-identities based on them cannot change the reality of caste-identities as they occur in society.”

22. In view of the above facts and position, the Bench finds that Maratha is not a socially backward community but is a socially advanced and prestigious community and therefore the Request for Inclusion of “Maratha” in the Central List of Backward Classes for Maharashtra along with Kunbhi should be rejected. In fact “Maratha” does not merit inclusion in the Central list of Backward Classes for Maharashtra either jointly with “Kunbhi” or under a F separate entity of it’s own.”

309Copy pinpoint309. We may also refer now to the three State Backward Classes Commissions appointed by the State. In the year 1961, Deshmukh Committee appointed by the State of Maharashtra did not include the Maratha community in the list of backward communities. In the year G 2001, Khatri Commission rejected the demand of Maratha to be included in backward class communities. On 25.07.2008, Bapat Commission in its report rejected the demand to include Maratha community in the other backward class communities by majority.

310Copy pinpoint310. After the Bapat Commission’s report, the State Government H had appointed Rane Committee to be headed by a Cabinet Minister who

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collected data and observed that Maratha may not be socially and A educationally backward but recommended grant of reservation as educationally and financially backward class. The National Commission or the State Commission, when it is appointed to examine the claim of a particular community to be included or excluded from a list of other backward classes, it is to look into the contemporaneous data and fact. B The State to inform itself of the status of a particular community appoints Commissions or Committees to take affirmative measures as ordained by the constitutional provisions of Articles 15 and 16. The relevant is the data status of the community as existing at the time of investigation and report.

311Copy pinpoint311. This Court in Ram Singh and others vs. Union of India, C (2015) 4 SCC 697, has categorically laid down in paragraph 49 that a decision which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on contemporaneous inputs. Following observations were made by two-Judge Bench of this Court in paragraph 49: D “49. ......A decision as grave and important as involved in the present case which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on the basis of contemporaneous inputs and not outdated and antiquated data. In fact, under Section 11 of the Act revision of the Central Lists is contemplated every ten years. The said provision further illuminates on the necessity and the relevance of contemporaneous data to the decision-making process.”

312Copy pinpoint312. We fully endorse the above view of this Court. Any study of Committee or Commission is with regard to present status since object is to take affirmative actions in present or in future to help the particular community. Three National Backward Classes Commissions reports as noted above in the year 1955, 1980 and 2000, were the reports regarding the status of the community as was found at the relevant time. Similarly, three State Committee/Commissions in the year 1961, 2001 and 2008 also were reporting the status of Marathas at the relevant time when the report was submitted. The term of the reference of the Gaikwad Commission was not to examine as to whether earlier reports of the National Commissions for Backward Classes or Committee/Commissions of the State earlier in not recommending Maratha to be included in OBC were correct or not. Terms of reference which is a part of the report H

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A clause (1) and clause (3) clearly indicate that the Commission was to collect contemporaneous data. Quantifiable data collected by the State which have been referred in the report were of the data collected period after 2014. The Commission’s observations made in the report that it does not agree with the earlier reports cannot be approved.

313Copy pinpoint313. We, however, hasten to add that it is always open to the State to collect relevant data to find out as to whether a particular caste or community is to be included in the list of other backward classes or excluded from the same despite any decision to the contrary taken earlier. The Constitution Bench in Indra Sawhney has also laid down for periodical review which is for the purpose and object that those communities who were earlier backward and advanced should be excluded and those communities who were earlier advanced and might have degraded into backward class should be included. Thus, the State was fully entitled to appoint backward classes commission to collect relevant data and submit the report.

314Copy pinpoint314. When in earlier period of about 60 years, right from 1955 to 2008, repeatedly it was held that Maratha community is not backward class, Gaikwad Commission ought to have applied the test that “what happened thereafter that now the Maratha community is to be included in OBC”. The Commission has not adverted to this aspect of the matter. The Commission ought to have also focused on comparative analysis as to what happened in the recent years that Marathas have become backward from forward class. In this context, we may also refer to the judgment of this Court in Ram Singh (supra) where National Backward Classes Commission has rejected the claim of Jat to be included in other backward communities with regard to several States. The National Commission recommended that Jat is politically dominant class and need not to be included in OBC. The Union disregarding the said report had issued a notification including Jat as OBC in the different States in the Central List. It was challenged in this Court by way of writ petition. This Court held that the report of National Backward Classes Commission could not have been disregarded and ought to have been given due weight. This Court held that Jat community is politically organised class which was rightly not included in the category of other backward classes. In paragraph 55 following was laid down: H

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“55. The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can backwardness any longer be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative: possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the politically organised classes (such as Jats) in the List of Backward Classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.” D

315Copy pinpoint315. We have already noted that after the 2014 enactment, writ petition was filed in the High Court challenging 2014, enactment by which Maratha community was declared as socially and educationally backward class and separate reservation was provided for. The Ordinance XIII of 2014 was issued to that effect; writ petition was filed in the High Court E challenging the Ordinance and inclusion of Maratha as other backward category. The High Court elaborately heard all parties and passed a detailed interim order in Writ Petition No.2053 of 2014 on 14.11.2014 where it set out various facts which were placed before the Court for staying the Ordinance and staying the grant of separate reservation to Maratha community. We may refer to paragraph 40(e) of the order F dated 14.11.2014 of the High Court which is to the following effect: “40. In the context of 16% reservation for Marathas upon their classifications as Educationally and Socially Backward Classes, he following position emerges: G ...... ...... ...... (e) The petitioner in Public Interest Litigation No.140 of 2014 placed on record some statistics by reference to data compiled by Dr. Suhas Palshikar in the book on “Politics of Maharashtra: H

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A Local Context of the Political Process:”, Editors: Suhas Palshikar and Nitin Birmal, Pratima Prakashan, 2007 which suggest that- (I) From 1962 to 2004, from out of 2430 MLAs, 1336 MLAs corresponding to 55% were Marathas;

316Copy pinpoint316. The above stated facts were not disputed before the High Court, and before this Court also in the submissions of the parties above facts have been repeated and it has been submitted that those facts clearly prove that Maratha are not socially backward. The Commission in its report does not dispute that Maratha is politically dominant class. G In this context, following is extracted from the report: “Political dominance cannot be ground to determine social and educational backwardness of any community.”

317Copy pinpoint317. We have already found that Maratha community has adequate and sufficient representation in the public services. We have also noted H

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that representation of Maratha in public services is present in all categories A i.e. Group A, Group B, Group C and Group D posts, and the Marathas have occupied the posts by competing with open categories. The representation of Marathas as noticed above has in many grades about 30% against all filled posts of open category. When a community is able to compete with open category candidates and obtain substantial number of seats (about 30%), this was relevant fact to be noticed while considering the social and educational backwardness of the community. Even if grant and non-grant of reservation to backward under Article 16(4) may not be considered as decisive for socially and educationally backward class for grant under Article 15(4) but grant or non-grant under Article 16(4) certainly is relevant for consideration which reflects on backward class or classes both in favour and against such backward class. We have noticed that the Commission has taken erroneous view that the representation of Maratha community in public services is not proportionate to their population and has recommended for grant of reservation under Article 16(4). We having disapproved the grant of reservation under Article 16(4) to Maratha community, the said decision becomes relevant and shall have certainly effect on the decision of the Commission holding Maratha to be socially and educationally backward. Sufficient and adequate representation of Maratha community in public services is indicator that they are not socially and educationally backward. E

318Copy pinpoint318. The Commission in its report while discussing, in Chapter VIII has analysed the various data including data of students belonging to Maratha community who are pursuing Engineering, Medical and other disciplines. In paragraph 178 the Commission has recorded that it obtained the information as regards Marathas engaged in and pursuing academic career, which would also throw light on the depth of their involvement in F higher education. In Paragraph 178, 1(b) the Commission has extracted a table for the last three academic years (2014-15, 2015-16, 2016-17) in the Engineering Courses as received from the Directorate of Technical Education of the State Government. Out of open category seats in Diploma of 167168 Maratha achieved admission in 34,248 seats and in G Graduate out of 221127, they could receive 32045 admissions, under Post Graduate out of 63795 they could secure admission in 12666 . Similarly details have been given about the Graduation and Post-Gaduation Medical Courses for three years. In MBBS out of 4720 in the year 2015-16 Maratha received 428 seats, in other streams out of 14360 they secured 2620 seats, in the above regards table is produced hereunder: H

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319Copy pinpoint319. Similarly, the Commission has given details of Medical Post D Graduation Courses in para-178-1(c)(c-ii) which indicates following with regard to other under-Graduate and Post-Graduate posts, details of which given in paragraph 178-1(d) which indicates:

320Copy pinpoint320. The above facts and figures which were obtained by the Commission itself indicate that students of Maratha community have succeeded in open competition and got admissions in all the streams including Engineering, Medical Graduation and Post-Graduation Courses and their percentage is not negligible. The computation of percentage by the Commission against Maratha is since out of open category seats, since 50% seats are for reserved category and only 50% are open, the percentage of the Maratha, thus, shall substantially increase as per table given by the Commission itself.

321Copy pinpoint321. The Commission has also made studies with regard to representation of Maratha in prestigious Central services, namely, IAS,

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IPS and IFS with regard to State of Maharashtra. In the State of A Maharashtra out of 161 posts filled from open category candidates, there are 25 IAS belonging from Maratha. Similarly out of 140 posts filled from open category, 39 of IPS belong to Maratha and in IFS out of 97, 89 posts filled from open category, there are 16 IAS belong to Maratha community. When we compute the percentage of IAS, IPS and IFS, B percentage of Maratha out of the posts filled from open category candidates comes to 15.52, 27.85 and 17.97 percentage respectively, which is substantial representation of Marathas in prestigious Central services.

322Copy pinpoint322. We may further notice that the above numbers of Maratha officers are only in the State of Maharashtra on the posts of the IPS, C IAS and IFS being Central services. Similarly, the members of Maratha community must have occupied the above posts in the other States of the Country of which details are not there.

323Copy pinpoint323. The Commission has also collected data regarding engagement of Maratha in Higher Academic and Educational Fields of University D Assignments in the State in paragraph 226. The Table D has been compiled by the Commission. In the said paragraph where Marathas occupied all categories of posts, including Head of Department, Professor, Associate Professor and Assistant Professor, the Commission has in the Chart also noted the number of Marathas occupying different posts in several Universities. It is true that in some of the Universities there may not be Maratha community in one or two posts but Chart indicates that there are sufficient number of Maratha in different Universities occupying posts of HOD, Professor, Associate Professor and Assistant Professor.

324Copy pinpoint324. There cannot be any concept of Marathas occupying all higher posts including the posts in the Universities according to their proportion of population. The Commission has commented in the report that their percentage in the above posts is less, whereas Table indicates that in HOD post in Savitribai Phule University Pune, out of open category filled post of 29 of HOD, only 3 are from Maratha community, out of 14 Professors only 2 are from Maratha community and out of 33 Associate G Professors only 3 are from Maratha community and out of 79 Assistant Professors only 3 are from Maratha community. The Commission concludes that only 4.3% are from Maratha community in the above posts. H

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325Copy pinpoint325. In the Higher Academic posts and posts like IAS, IPS and IFS, there cannot be any basis to contend that since Maratha community is not occupying posts according to their proportion of population, they are socially and educationally backward classes. The above are the data and figures on the basis of which the Commission concluded that the Marathas are socially and educationally backward class. When we look into the aforesaid details regarding Maratha students occupying Engineering, Medical and other streams, Maratha officers occupying Central posts of IAS, IPS and IFS and are occupying posts of Higher Academic in Universities, mere fact that their occupation of posts is not equivalent to the proportion of their population cannot lead to the conclusion that they are socially and educationally backward. We are conscious that the Commission has conducted sample survey collected representations and other information, data and has allotted marks on social and educational and economic backward class and in the marking Marathas were found to be backward. However, data and facts which have been collected by the Commission noted above clearly indicate that Marathas are neither socially nor educationally backward and the conclusion recorded by the Gaikwad Commission on the basis of its marking system, indicator and marking is not sufficient to conclude that Marathas are socially and educationally backward.

326Copy pinpoint326. The facts and figures as noted above indicate otherwise and on the basis of the above data collected by the Commission, we are of the view that the conclusion drawn by the Commission is not supportable from the data collected. The data collected and tabled by the Commission as noted above clearly proves that Marathas are not socially and educationally backward.

327Copy pinpoint327. We have completed more than 70 years of independence, all governments have been making efforts and taking measures for overall developments of all classes and communities. There is a presumption unless rebutted that all communities and castes have marched towards advancement. This Court in Ram Singh versus Union of India and G others (Supra) has made such observations in paragraph 52:- “52...This is because one may legitimately presume progressive advancement of all citizens on every front i.e. social, economic and educational. Any other view would amount to retrograde governance. Yet, surprisingly the facts that stare at us indicate a H governmental affirmation of such negative governance inasmuch

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as decade old decisions not to treat the Jats as backward, arrived A at on due consideration of the existing ground realities, have been reopened, in spite of perceptible all-round development of the nation. This is the basic fallacy inherent in the impugned governmental decision that has been challenged in the present proceedings...” B 327(a).We also endorse the opinion of Brother Justice S. Ravindra Bhat on affirmative actions and giving of more and more incentives to realise the constitutional objectives which undoubtedly is the obligation and duty of the State.

328Copy pinpoint328. We are constrained to observe that when more people aspire for backwardness instead of forwardness, the country itself stagnates which situation is not in accord with constitutional objectives. (14)The Constitution (One Hundred and Second Amendment) Act, 2018 [The Constitution(102nd Amendment)Act, 2018].

329Copy pinpoint329. I have advantage of going through erudite draft judgment circulated by my esteemed Brother, Ravindra Bhat. Although, we both are aditem on the question of Constitutional validity of Constitution 102nd Amendment Act, 2018, I regret my inability to agree with the interpretation of the Constitution 102nd Amendment Act, 2018 as put by my esteemed Brother. E nd

330Copy pinpoint330. The case of the appellant is that after 102 Amendment to the Constitution which came into force with effect from 15.08.2018, the Maharashtra Legislature had no competence to enact Act, 2018. After the Constitution 102nd Amendment, the States have no power to identify socially and educationally backward classes. The Constitution 102 nd F Amendment had brought change in the regime already in existence for backward class to fall it in line with Articles 341 and 342 of the Constitution. Article 366(26C) says that the phrase SEBCs “means” those backward classes which are so deemed under Article 342A, for the purposes of this Constitution. The expression “for the purposes of this Constitution” is used in Articles 15(4) and 16(4), 338B, 342A and in G other Articles of the Constitution of India. In view of Article 342A the SEBCs are those who are specified by the President by public notification for the purposes of a State or Union Territory under sub-clause(1) of Article 342A. Article 342A being analogous to Articles 341 and 342 must be interpreted exactly in the same manner. The Parliament inserted H

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A phrase “Central List” in clause (2) of Article 342A only to emphasize the fact that after Constitution 102nd Amendment, the only list that shall be drawn for the purposes of SEBCs is the Central List drawn by the President.

331Copy pinpoint331. Learned counsel for the appellant contends that Maharashtra B Legislature had no competence to enact 2018 Legislation after Constitution 102 nd Amendment. Learned senior counsel, Shri Gopal Sankaranarayanan, submitted that for interpreting Article 342A reliance on Select Committee report of Rajya Sabha is unwarranted.

332Copy pinpoint332. The above submissions of the appellant have been stoutly refuted by the learned counsel for the State of Maharashtra as well as other States. Under Articles 15(4) and 16(4), the Union and the States have co-equal powers to advance the interest of the socially and educationally backward classes; therefore, any exercise of power by the Union cannot encroach upon the power of the State to identify socially and educationally backward classes. The expression “for the purpose of the Constitution” can, therefore, only to be construed with the contours of the power that Union is entitled to exercise with respect to entities, institutions, authorities and public sector enterprises under the control of the Union. The power to identify and empower socially and educationally backward classes and determining the extent of reservation required is vested in the State by our Constitution and recognised by judicial pronouncements including Indra Sawhney. The expression “Central List” occurring in Article 342A(2) relates to the identification under Article 342A(1) wherein the Central List will include the socially and educationally backward classes for the purposes of the Central Government. Any other interpretation would allow to whittle down the legislative power of the State. Article 342A must be interpreted in the historical context. It is submitted that the Constitution 102nd Amendment has brought changes with regard to Central List. The expression Central List is well understood concept in service jurisprudence for reservation purposes of OBC, there are two lists, Central List and State List.

333Copy pinpoint333. It is submitted that the Parliamentary Committee report and other materials throw considerable light on the intention of Parliament for inserting Article 342A in the Constitution. The Constitutional amendment has to be interpreted in the light of the Parliamentary intention. The power of the State Government to legislate cannot be taken away H without amendment of Articles 15 and 16. The Parliament has not even

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exercised its power to occupy the field of a State by clearly using the A expression ‘Central List’ in sub-clause (2). If the Constitution 102nd Amendment is interpreted in the manner as appellants are interpreting, the Constitutional Amendment shall be violative of the federal structure and shall be unconstitutional.

334Copy pinpoint334. We have in this batch of cases issued notice to learned B Attorney General, the interpretation of the 102nd Amendment to the Constitution of India being in question. Shri K.K. Venugopal, learned Attorney general submits that the Constitution Bench in Indra Sawhney in paragraph 847 had taken the view that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the C lists of Other Backward Classes can be made. He submitted that the Constitution Bench in Indra Sawhney directed the Government of India, each of the State Governments and the Administrations of Union Territories to constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over- D inclusion and under-inclusion in the lists of other backward classes of citizens.

335Copy pinpoint335. Learned Attorney General submits that in view of the above nine-Judge Bench judgment of this Court it is inconceivable that any such amendment can be brought in the Constitution that no State shall have competency to identify the backward classes, Article 15(4) necessarily includes the power of identification. Under Article 12 of the Constitution, the State includes the Government and Parliament, and Government and Legislature of each State. In event the States have to deprive their rights under Articles 15(4) and 16(4) of the Constitution, a proviso had to be added. Article 15(4) and 16(4) are the source of power to identify SEBC. The Constitution 102nd amendment has not made any such amendment by which the effect of Articles 15(4) and 16(4) has been impacted. He submits that the National Commission for Backward Classes Act, 1993 was passed by the Parliament in obedience of direction of Indra Sawhney. Section 2(c) of the Act defines “lists” which is clearly limited to the Central Government; Learned Attorney General submits that Article 342A covers the Central Government list alone. Learned Attorney General has referred to Select Committee report dated 17.07.2017 and submits that Select Committee report after considering the response and clarification by the concerned Ministry had opined that H

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A 102nd Amendment was not to take the rights of the State to identify other backward classes in their States. He submits that rights of the State to identify OBC for their States in respect of the States are untouched. Referring to State of Punjab, learned Attorney General submits that there are two lists, Central List which contains 68 OBC, the State List which contains 71, he submits that with regard to the Scheduled B Castes and Scheduled Tribes the President was given power in the Constitution with which State had no concern. There was no attempt on behalf of the Parliament to modify Articles 15(4) and 16(4).

336Copy pinpoint336. Learned Attorney submits that Article 342A has to be read harmoniously with the other provisions of the Constitution. Learned C Attorney General has also referred to a short affidavit filed by the Union of India in Writ Petition (C) No.12 of 2021-Dinesh B. vs. Union of India & Ors., wherein Union has taken the stand that the power to identify and specify the SEBCs lies with Parliament, only with reference to the Central List of SEBCs. The State Governments may have their separate D State Lists of SEBCs in recruitment. Learned Attorney General adopts the same stand taken by the Union of India in the aforesaid affidavit. He reiterated that the Parliament by passing Constitution Amendment has not taken away the power of the State to identify backward classes (SEBCs) in their States.

337Copy pinpoint337. He further submits that there is no violation of basic structure of the Constitution. Replying to the argument of learned counsel for the writ petitioner under clause (2) of Article 368 learned Attorney General submits that power to identify backward classes being under Articles 15 and 16, there is no occasion to examine the list of 7th Schedule to find the source of power. He submits that no amendments have been made in F any of the Lists of 7th Schedule so as to attract the proviso to Article 368(2). He submits that the Constitution 102nd Amendment did not require ratification by the State Legislature.

338Copy pinpoint338. Before coming to the Articles in the Constitution inserted by the Constitution 102nd Amendment, we need to notice the Statement of G Objects and Reasons contained in the Constitution (One Hundred and Twenty-Third Amendment) Bill, 2017 which was introduced in the Lok Sabha on 4th April, 2017 and some details regarding legislative process which culminated into passing of the Constitution (One Hundred and Second Amendment) Act, 2018. When Bill came for discussion to amend the Constitution of India, it was passed by Lok Sabha on 10.04.2017. H

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Rajya Sabha on motion adopted by the House on 11.4.2017 referred the A Bill to the Select Committee for examination of the Bill and report thereon to the Rajya Sabha. The Select Committee of Rajya Sabha examined the Bill by holding 7 meetings. The Select Committee asked clarification on various issues from the Ministry and after receipt of clarifications submitted the report on 17.07.2017. The Constitution (One Hundred and B Twenty-Third Amendment) Bill, 2017 with the Select Committee report came for consideration before the Rajya Sabha. The Bill was passed with certain amendments on 31.07.2017 by the Rajya Sabha. After passing of the Bill, it was again taken by the Lok Sabha and it was passed by the Lok Sabha on 2nd August, 2018. Rajya Sabha agreed to the Bill on 6th August, 2018. C

339Copy pinpoint339. The Statement of Objects and Reasons of Constitution 102 nd Amendment are contained in the Constitution (One Hundred and Twenty- Third Amendment) Bill, 2017. It is useful to extract the entire Statement of Objects and Reasons as contained in the Bill: “STATEMENT OF OBJECTS AND REASONS D The National Commission for the Scheduled Castes and Scheduled Tribes came into being consequent upon passing of the Constitution (Sixty-fifth Amendment) Act, 1990. The said Commission was constituted on 12th March, 1992 replacing the Commission for the Scheduled Castes and Scheduled Tribes set E up under the Resolution of 1987. Under article 338 of the Constitution, the National Commission for the Scheduled Castes and Scheduled Tribes was constituted with the objective of monitoring all the safeguards provided for the Scheduled Castes and the Scheduled Tribes under the Constitution or other laws.

2. Vide the Constitution (Eighty-ninth Amendment) Act, 2003, a F separate National Commission for Scheduled Tribes was created by inserting a new article 338A in the Constitution. Consequently, under article 338 of the Constitution, the reference was restricted to the National Commission for the Scheduled Castes. Under clause (10) of article 338 of the Constitution, the National G Commission for Scheduled Castes is presently empowered to look into the grievances and complaints of discrimination of Other Backward Classes also.

3. In the year 1992, the Supreme Court of India in the matter of Indra Sawhney and others Vs. Union of India and others (AIR H

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A 1993, SC 477) had directed the Government of India to constitute a permanent body for entertaining, examining and recommending requests for inclusion and complaints of over-inclusion and under- inclusion in the Central List of Other Backward Classes. Pursuant to the said Judgment, the National Commission for Backward Classes Act was enacted in April, 1993 and the National B Commission for Backward Classes was constituted on 14th August, 1993 under the said Act. At present the functions of the National Commission for Backward Classes is limited to examining the requests for inclusion of any class of citizens as a backward class in the Lists and hear complaints of over-inclusion or under- C inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. Now, in order to safeguard the interests of the socially and educationally backward classes more effectively, it is proposed to create a National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes D and the National Commission for Scheduled Tribes. (Underlined by us)

4. The National Commission for the Scheduled Castes has recommended in its Report for 2014-15 that the handling of the E grievances of the socially and educationally backward classes under clause (10) of article 338 should be given to the National Commission for Backward Classes.

5. In view of the above, it is proposed to amend the Constitution of India, inter alia, to provide the following, namely:— F (a) to insert a new article 338 so as to constitute the National Commission for Backward Classes which shall consist of a Chairperson, Vice-Chairperson and three other Members. The said Commission will hear the grievances of socially and educationally backward classes, a function which has been discharged so far by the National Commission for Scheduled Castes G under clause (10) of article 338; and (b) to insert a new article 342A so as to provide that the President may, by public notification, specify the socially and educationally backward classes which shall for the purposes of the Constitution be deemed to be socially and educationally backward classes. H

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6. The Bill seeks to achieve the above objectives. A NEW DELHI; THAAWARCHAND GEHLOT. The 30th March, 2017.”

340Copy pinpoint340. By the Constitution 102nd Amendment, Articles 338 sub-clause (10), new Article 338B, Article 342A and 366(26C) were inserted. B

341Copy pinpoint341. In the writ petition before the High Court, the question was raised “whether the Constitution (One Hundred and Second Amendment) Act, 2018 affects the competence of the Legislature to enact the impugned Legislation.” The High Court noticed the parliamentary process including the report of Select Committee. The High Court held that use C of Central List in sub-clause (2) of Article 342A is not in vacuum but it must take its due meaning in reference to the context. The High Court held that Parliament being conscious of the facts that there are two lists operating in various States, firstly, for providing reservation prescribed by the Central Government in Central services and the other list for providing reservation by the respective State Governments, the Parliament D intended that it would retain the power to include or exclude from the Central List. The High Court, further, held that had the Parliament intended to deprive the State of its power, it would have specifically mentioned so. The High Court rejected the submission of the learned counsel for the appellants that the Constitution 102nd Amendment denuded E the power of the State to legislate with regard to other backward categories in respect to State.

342Copy pinpoint342. We have also noticed that Writ Petition (C) No.938 of 2020- Shiv Sangram and another vs. Union of India and others, had been filed questioning the constitutional validity of the Constitution 102 nd F Amendment. PRINCIPLES TO INTERPRET CONSTITUTIONAL PROVISIONS

343Copy pinpoint343. We in the present case are concerned with Constitutional Amendment brought by the Constitution (One Hundred and Second G Amendment) Act, 2018. The Constitutional Amendment is not a normal legislative exercise and it is always carried out with an object and the purpose. The Constitution of India is a grand norm given to us by the Framers of the Constitution with great deliberations and debates. The Constitution contained the objectives and goals of the nation and contains H

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A ideals For the governance by the State. Justice G.P. Singh in ‘Principles of Statutory Interpretation’, 14th Edition under the heading ‘Intention of the Legislature’ explains the statutory interpretation in following words: “A statute is an edict of the Legislature” and the B conventional way of interpreting or construing a statute is to seek the ‘intention’ of its maker. A statute is to be construed according ‘to the intent of those that make it’ and ‘the duty of judicature is to act upon the true intention of the Legislature-the mens or sententia legis’.” The expression ‘intention of the Legislature’ is a shorthand reference to the meaning of the words used by the Legislature C objectively determined with the guidance furnished by the accepted principles of interpretation. “If a statutory provision is open to more than one interpretation the court has to choose that interpretation which represents the true intention of the Legislature, in other words the legal meaning’ or ‘true meaning’ of the statutory provision.”

344Copy pinpoint344. Chief Justice, Sir, Maurice Gwyer speaking in Federal Court, in The Central Province and Berar Sales of Motor Spirit and Lubricants Taxations Act, 1938, AIR 1939 Federal Court 1, held that rules which apply to the interpretation of other statute applies equally to the interpretation of the constitutional enactment. But their application is of necessity condition by the subject matter of the enactment itself.

345Copy pinpoint345. On the interpretation of the Constitution of India, a Constitution Bench of this Court in ITC Ltd. vs. Agricultural Produce Market Committee and others, (2002) 9 SCC 232, laid down following proposition in paragraph 59: “59. The Constitution of India deserves to be interpreted, language permitting, in a manner that it does not whittle down the powers of the State Legislature and preserves the federalism while also upholding the Central supremacy as contemplated by some of its articles.”

346Copy pinpoint346. It is said that the statute is an edict of the Legislature. The elementary principle of interpreting the Constitution or statute is to look into the words used in the statute, when the language is clear, the intention of the Legislature is to be gathered from the language used. The aid to interpretation is resorted to only when there is some ambiguity in words H

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or expression used in the statute. The rule of harmonious construction, A the rule of reading of the provisions together as also rule of giving effect to the purpose of the statute, and few other principles of interpretation are called in question when aids to construction are necessary in particular context. We have already noticed the Statement of Objects and Reasons of the statute in the earlier paragraph. Paragraph 5 of the Statement of B Objects and Reasons mentions amendment of Constitution by (a) inserting a new Article 338B so as to constitute the National Commission for Backward Classes and (b) to insert a new Article 342A so as to provide that the President may, by public notification, specify the socially and educationally backward classes. The Bill was moved by Thawarchand Gehlot, Minister of Social Justice and Empowerment. C

347Copy pinpoint347. Learned counsel for both the parties have advanced the respective submissions on the interpretation of words “Central List” as used in clause (2) of Article 342A. Both the parties having advanced divergent submissions on the true and correct interpretation of “Central List”, it becomes necessary to take aid of interpretation. What was the D purpose and object of uses of expression ‘Central List’, sub-clause (2) of Article 342A has to be looked into to find a correct meaning of the constitutional provisions.

348Copy pinpoint348. We have noticed above that learned Attorney General as well as learned counsel for the State of Maharashtra and other States E have relied on Select Committee report, debates in Parliament and the Statement of Minister to find out the intention of the Parliament in inserting Article 342A of the Constitution.

349Copy pinpoint349. Shri Gopal Sankaranarayanan, learned senior counsel for the petitioner has questioned the admissibility of Parliamentary Committee F report. He submits that Parliamentary Committee report is not admissible and cannot be used as aid to interpretation which submission has been refuted by Shri P.S. Patwalia, learned senior counsel as well Dr. A.M. Singhvi, learned Senior Counsel, who state that Parliamentary Committee report as well the Statement made by the Minister in the Parliament are admissible aids to the interpretation and are necessary to find out the G intention of the Parliament in bringing the 102nd Amendment to the Constitution. We, thus, proceed to look into the law as to admissibility of report of Parliamentary Committee and Statement of Minister in the Parliament as aids to interpret a constitutional provision. H

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350Copy pinpoint350. Shri Gopal Sankaranarayanan, relying on the judgment of this Court in State of Travancore, Cochin and others vs. Bombay Company Ltd., AIR 1952 SC 366, submits that this Court observed that the “speeches made by the members of the Constituent Assembly as external aid to the constitutional interpretation is not admissible. Mr. Gopal Sankaranarayanan relies on paragraph 16 of the judgment which is to the following effect: “16. It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the course of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is not admissible has been generally accepted in England, and the same rule has been observed in the construction of Indian statutes — see Administrator-General of Bengal v. Prem Nath Mallick [22 IA 107, 118] . The reason behind the rule was explained by one of us in Gopalan case [1950 D SCR 88] thus: “A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume E that the minds of all those legislators were in accord,” or, as it is more tersely put in an American case— “Those who did not speak may not have agreed with those who did; and those who spoke might differ from each other — United States v. Trans-Missouri Freight Association [169 US F 290, 318] .” This rule of exclusion has not always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in G Canada and Australia — see Craies on Statute Law, 5th Ed., p. 122.”

351Copy pinpoint351. It is relevant to notice that in paragraph 16 it was also observed that rule of exclusion has not always been upheld to in America and sometime distinction is made between using such material to H ascertaining purpose of a statute and using it for ascertaining its meaning.

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The judgment itself indicated that the said material is sometime used to A ascertain the purpose of a statute. The law has been explained and elaborated in subsequent judgments of this Court which we shall notice hereinafter. One more judgment on which reliance has been placed by Shri Gopal Sankaranarayanan is the judgment of this Court in Aswini Kumar Ghose and another v. Arabinda Bose and another, AIR B 1952 SC 369, in which this Court referring to earlier judgment of this Court in State of Travancore, Cochin and others vs. Bombay Company Ltd. (supra) laid down in paragraph 31: “31. As regards the speeches made by the Members of the House in the course of the debate, this Court has recently held that they are not admissible as extrinsic aids to the C interpretation of statutory provisions: (State of Travancore- Cochin v. Bombay Co. Ltd. etc. [ CA Nos. 25, 28 and 29 of 1952]”

352Copy pinpoint352. With regard to speeches in the Constituent Assembly, the Constitution Bench of this Court, in His Holiness Kesvananda Bharati D vs. State of Kerala and another, (1973) 4 SCC 225, several Hon’ble Judges in their separate judgments have relied and referred to Constituent Assembly debates for the interpretation of provisions of Part III and Part IV. Justice S.M. Sikri, CJ in paragraph 116 observed: “186. The speeches can, in my view, be relied on only in E order to see if the course of the progress of a particular provision or provisions throws any light on the historical background or shows that a common understanding or agreement was arrived at between certain sections of the people..”

353Copy pinpoint353. Justice Jaganmohan Reddy stoutly said that Constituent F Assembly debates be looked into for ascertaining intention of our framers of the Constitution. Justice Jaganmohan Reddy also held that in a constitutional matter this Court should look into the proceedings of relevant date including any speech which may throw light in ascertaining it. Justice Jaganmohan Reddy in paragraph 1088 laid down: G “1088. ...Speaking for myself, why should we not look into them boldly for ascertaining what was the intention of our framers and how they translated that intention? What is the rationale for treating them as forbidden or forbidding material. The Court in a constitutional matter, where the intent of the framers of the H

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A Constitution as embodied in the written document is to be ascertained, should look into the proceedings, the relevant data including any speech which may throw light on ascertaining it. It can reject them as unhelpful, if they throw no light or throw only dim light in which nothing can be discerned. Unlike a statute, a Constitution is a working instrument of Government, it is drafted by people who wanted it to be a national instrument to subserve successive generations. The Assembly constituted Committees of able men of high calibre, learning and wide experience, and it had an able adviser, Shri B.N. Rau to assist it. .....”

354Copy pinpoint354. Justice H.R. Khanna in paragraph 1358 also in his judgment had elaborately referred to and relied on the speeches made in the Constituent Assembly. In paragraph 1367 His Lordship laid down: “1367. So far as the question is concerned as to whether the speeches made in the Constituent Assembly can be taken into consideration, this court has in three cases, namely, I.C. Golak D Nath v. State of Punjab, H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India [(1971) 1 SCC 85 : (1971) 3 SCR 9] and Union of India v. H.S. Dhillon [(1971) 2 SCC 779 : (1972) 2 SCR 33] taken the view that such speeches can be taken into account. In Golak Nath case Subba Rao, C.J., who spoke for the majority referred to the speeches of Pt. E Jawaharlal Nehru and Dr Ambedkar on p. 791. Reference was also made to the speech of Dr Ambedkar by Bachawat, J. in that case on p. 924. In the case of Madhav Rao, Shah, J. who gave the leading majority judgment relied upon the speech of Sardar Patel, who was Minister for Home Affairs, in the Constituent F Assembly (see P. 83). Reference was also made to the speeches in the Constituent Assembly by Mitter, J. on pages 121 and 122. More recently in H.S. Dhilion case relating to the validity of amendment in Wealth Tax Act, both the majority judgment as well as the minority judgment referred to the speeches made in the Constituent Assembly in support of the conclusion arrived at. G It can, therefore, be said that this Court has now accepted the view in its decisions since Golak Nath case that speeches made in the Constituent Assembly can be referred to while dealing with the provision of the Constitution.”

355Copy pinpoint355. Justice K.K. Mathew in paragraph 1598 had held that the H debates in the Constituent Assembly can be looked into to understand

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the legislative history of a provision of the Constitution including its derivation, that is, the various steps leading up to and attending its enactment, to ascertain the intention of the makers of the Constitution. Following was laid down in paragraph 1598: “1598. If the debates in the Constituent Assembly can be looked into to understand the legislative history of a provision of the Constitution including its derivation, that is, the various steps leading up to and attending its enactment, to ascertain the intention of the makers of the Constitution, it is difficult to see why the debates are inadmissible to throw light on the purpose and general intent of the provision. After all, legislative history only tends to reveal the legislative purpose in enacting the provision and thereby sheds light upon legislative intent. It would be drawing an invisible distinction if resort to debates is permitted simply to show the legislative history and the same is not allowed to show the legislative intent in case of latent ambiguity in the provision. ....”

356Copy pinpoint356. In the Constitution Bench in R.S. Nayak vs. A.R. Antulay, D 1984(2) SCC 183, The argument was again advanced that debates in Parliament or the report of the Commission or Committee which proceed the enactment is not permissible aid to construction. Submission was noted in paragraph 32 of the judgment to the following effect: “32. Mr. Singhvi contended that even where the words in a E statute are ambiguous and may be open to more than one meaning or sense, a reference to the debates in Parliament or the report of a commission or a committee which preceded the enactment of the statute under consideration is not a permissible aid to construction. ...” F

357Copy pinpoint357. In paragraph 33 it was held that in order to ascertain true meaning of literal words in the statute reference to the report are held legitimate external aid. In paragraph 33 following was laid down: “33. The trend certainly seems to be in the reverse gear in that in order to ascertain the true meaning of ambiguous words in G a statute, reference to the reports and recommendations of the commission or committee which preceded the enactment of the statute are held legitimate external aids to construction. The modern approach has to a considerable extent eroded the exclusionary rule even in England. ……” H

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358Copy pinpoint358. Ultimately, this Court rejected the submission raised and held that the reports of the Committee were admissible. Following was laid down in paragraph 34: “34. ….Further even in the land of its birth, the exclusionary rule has received a serious jolt in Black-Clawson International B Ltd. v. Papierwerke Waldhof-Aschaffenburg AG:[(1975) 1 All ER 810, 843] Lord Simon of Claisdale in his speech while examining the question of admissibility of Greer Report observed as under: “At the very least, ascertainment of the statutory objective can immediately eliminate many of the possible meanings that the language of the Act might bear; and, if an ambiguity still remains, consideration of the statutory objective is one of the means of resolving it. The statutory objective is primarily to be collected from the provisions of the statute itself. In these days, when the long title can be amended in both Houses, I can see no reason for having recourse to it only in case of an ambiguity — it is the plainest of all the guides to the general objectives of a statute. But it will not always help as to particular provisions. As to the statutory objective of these, a report leading to the Act is likely to be the most potent aid; and, in my judgment, it would be mere obscurantism not to avail oneself of it. There is, indeed clear and high authority that it is available for this purpose. ……”

359Copy pinpoint359. It is noted that although the above Constitution Bench was subsequently overruled by seven-Judge Bench but the above proposition was not touched. We may also notice the Constitution Bench judgment of this Court in Minerva Mills Ltd. and others vs. Union of India and others, (1980) 3 SCC 625. CJ, Y.V. Chandrachud speaking for the Constitution Bench referred to speech of Law Minister made in the Parliament and held that the constitutional provisions cannot be read contrary to its proclaimed purpose as was stated by the Law Minister in the floor of the House. In paragraph 65 following was laid down: “65. Mr. Palkhivala read out to us an extract from the speech of the then Law Minister who, while speaking on the H

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amendment to Article 31-C, said that the amendment was being introduced because the government did not want the “let and hindrance” of the fundamental rights. If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. We suppose that in the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, to accept the argument that we should read down Article 31-C, so as to make it conform to the ratio of the majority decision in Kesavananda C Bharati [Kesavananda Bharati v. State of Kerala, 1973 Supp SCR 1 : (1973) 4 SCC 225 : AIR 1973 SC 1461] , is to destroy the avowed purpose of Article 31-C as indicated by the very heading “Saving of Certain Laws” under which Articles 31-A, 31-B and 31-C are grouped. Since the amendment to Article 31-C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 31-C from the challenge of unconstitutionality by reading into that Article words which destroy the rationale of that Article and an intendment which is plainly contrary to its proclaimed purpose.”

360Copy pinpoint360. We may conclude the discussion on the topic by referring to a subsequent Constitution judgment of this Court in Kalpana Mehta and others vs. Union of India and others, (2018) 7 SCC 1, in which one of us Justice Ashok Bhushan was also a member. In the above case, the Constitution Bench elaborately dealt with the role of Parliamentary Committee. One of the questions which was referred to before the Constitution Bench to answer was “whether in a litigation filed before this Court under Article 32 and our Court can refer to and place reliance upon the report of the Parliamentary Standing Committee. The Constitution Bench referring to earlier judgment of this Court in G R.S. Nayak v. A.R. Antulay (supra) laid down following in paragraphs 123 and 134: “123. A Constitution Bench in R.S. Nayak v. A.R. Antulay [R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, after H