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

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A referring to various decisions of this Court and development in the law, opined that the exclusionary rule is flickering in its dying embers in its native land of birth and has been given a decent burial by this Court. The Constitution Bench further observed that the basic purpose of all canons of the Constitution is to ascertain with reasonable certainty the intention of Parliament and for the said purpose, external aids such as reports of Special Committee preceding the enactment, the existing state of law, the environment necessitating enactment of a legislation and the object sought to be achieved, etc. which Parliament held the luxury of availing should not be denied to the court whose primary function is to give effect to the real intention of the legislature in enacting a statute. The Court was of the view that such a denial would deprive the Court of a substantial and illuminating aid to construction and, therefore, the Court decided to depart from the earlier decisions and held that reports of committees which preceded the enactment of a law, reports of Joint Parliamentary Committees and a report of a commission set up for collecting information can be referred to as external aids of construction.

134. From the aforesaid, it clear as day that the Court can take aid of the report of the Parliamentary Committee for the purpose of appreciating the historical background of the statutory provisions and it can also refer to committee report or the speech of the Minister on the floor of the House of Parliament if there is any kind of ambiguity or incongruity in a provision of an enactment.”

361Copy pinpoint361. Justice Dipak Misra, CJ speaking for himself and Justice A.M. Khanwilkar recorded his conclusion in paragraph 159.1 and 159.2 F to the following effect: “159.1. Parliamentary Standing Committee report can be taken aid of for the purpose of interpretation of a statutory provision wherever it is so necessary and also it can be taken note of as existence of a historical fact. G 159.2. Judicial notice can be taken of the Parliamentary Standing Committee report under Section 57(4) of the Evidence Act and it is admissible under Section 74 of the said Act.”

362Copy pinpoint362. Dr. Justice D.Y. Chandrachud laid down following in paragraph 260: H

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“260. The use of parliamentary history as an aid to statutory construction is an area which poses the fewest problems. In understanding the true meaning of the words used by the legislature, the court may have regard to the reasons which have led to the enactment of the law, the problems which were sought to be remedied and the object and purpose of the law. For understanding this, the court may seek recourse to background parliamentary material associated with the framing of the law.”

363Copy pinpoint363. Justice Ashok Bhushan, one of us, in his concurring judgment has observed that Committees of both Rajya Sabha and Lok Sabha are entrusted with enormous duties and responsibilities in reference to the functions of Parliament. Following was observed in paragraph 335: C

“335. Various committees of both Rajya Sabha and Lok Sabha are entrusted with enormous duties and responsibilities in reference to the functions of Parliament. Maitland in Constitutional History of England while referring to the committees of the Houses of British Parliament noticed the functions of the committees in the following words: “… Then again by means of committees the Houses now exercise what we may call an inquisitorial power. If anything is going wrong in public affairs a committee may be appointed to investigate the matter; witnesses can be summoned to give evidence on oath, and if they will not testify they can be committed for contempt. All manner of subjects concerning the public have of late been investigated by parliamentary commissions; thus information is obtained which may be used as a basis for legislation or for the recommendation of administrative reforms.”

364Copy pinpoint364. After noticing the relevant Rules, it was held that parliamentary materials including reports and other documents are permissible to be given as evidence in the Court of law. In paragraph 351 following was laid down: G “351. From the above discussion it is clear that as a matter of fact the parliamentary materials including reports and other documents have been sent from time to time by the permission of Parliament itself to be given as evidence in courts of law.” H

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365Copy pinpoint365. Noticing the observation of House of Lords in Pepper (Inspector of Taxes) v. Hart, that parliamentary materials for the purpose of construing legislation can be used, following observation in paragraph 380 was made: “380. In the end Lord Wilkinson held that reference to parliamentary materials for the purpose of construing legislation does not breach Article 9 of the Bill of Rights (1688). The following was held: (Hart case [Pepper (Inspector of Taxes) v. Hart, 1993 AC 593 : (1992) 3 WLR 1032 : 1992 UKHL 3 (HL)] , AC p. 644) “… For the reasons I have given, as a matter of pure law this House should look at Hansard and give effect to the parliamentary intention it discloses in deciding the appeal. The problem is the indication given by the Attorney General that, if this House does so, your Lordships may be infringing the privileges of the House of Commons.

D For the reasons I have given, in my judgment reference to parliamentary materials for the purpose of construing legislation does not breach Article 9 of the Bill of Rights. …””

366Copy pinpoint366. In paragraph 395, it was also noted by this Court that parliamentary proceeding including reports of the Standing committee of Parliament were relied in large number of cases of this Court. In paragraph 395 following was laid down: “395. This Court in a number of cases has also referred to and relied on parliamentary proceedings including reports of the Standing Committee of Parliament. The learned counsel for the petitioners have given reference to several cases in this regard, namely, Catering Cleaners of Southern Railway v. Union of India [Catering Cleaners of Southern Railway v. Union of India, (1987) 1 SCC 700 : 1987 SCC (L&S) 77] where the Court has taken into consideration report of a Standing Committee of petitions. Another case relied on is Gujarat Electricity G Board v. Hind Mazdoor Sabha [Gujarat Electricity Board v. Hind Mazdoor Sabha, (1995) 5 SCC 27 : 1995 SCC (L&S) 1166]. In State of Maharashtra v. Milind [State of Maharashtrav. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117], the Court has referred to and relied on a Joint Parliamentary Committee report. In Federation of Railway Officers H

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Assn. v. Union of India [Federation of Railway Officers A Assn. v. Union of India, (2003) 4 SCC 289 : AIR 2003 SC 1344], the Court has referred to a report of the Standing Committee of Parliament on Railways. In Aruna Roy v. Union of India [Aruna Royv. Union of India, (2002) 7 SCC 368 : 5 SCEC 310] , report of a Committee, namely, S.B. Chavan Committee, which was B appointed by Parliament was relied and referred. M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (2017) 7 SCC 243] was again a case where report of a Standing Committee of Parliament on Petroleum and Natural Gas has been referred to and relied. Other judgments where Parliamentary Committee reports have been relied are Kishan Lal Gera v. State C of Haryana [Krishan Lal Gera v. State of Haryana, (2011) 10 SCC 529] , Modern Dental College and Research Centre v. State of M.P. [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] and Lal Babu Priyadarshi v. Amritpal Singh [Lal Babu Priyadarshi D v. Amritpal Singh, (2015) 16 SCC 795 : (2016) 3 SCC (Civ) 649].”

367Copy pinpoint367. The above discussion makes it clear that the law is well settled in this county that Parliamentary Committee reports including speech given by the Minister in the Parliament and the debates are relevant materials to ascertain the intention of Parliament while constituting constitutional provisions. We, thus, reject the objection of Shri Gopal E Sankaranarayanan that Parliamentary Committee report and the speech of the Minister cannot be looked into for ascertaining the intention of Parliament in bringing the Constitution 102nd Amendment.

368Copy pinpoint368. The intention of the Parliament for bringing the constitutional amendment is necessary to be found out to interpret the constitutional amendments. The words used in constitutional amendment have to be interpreted in the context for which they were used. We may refer to the celebrated words of Justice Holmes in Towne v. Eisner, 245 US 418, where he observed: “a word is not crystal, transparent and unchanged; it is a skin of living thought and may very greatly in colour and content according to the circumstances and the time in which it is used.” In what context the words “Central List” has been used in Article 342A(1) has to find out and what was the intent of Parliament in using the words “Central List” in sub-clause (2) and what was the intent of the Parliament in inserting Article 342A in the Constitution are relevant for purposes of constitutional interpretation. H

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369Copy pinpoint369. We need to look into the parliamentary process which culminated into parliament passing the Constitution (102nd Amendment) Act, 2018. The Constitution (123rd Amendment) Bill, 2017 was introduced in the Lok Sabha on 02.04.2017 and was passed in Lok Sabha on 10.04.2017. When the Bill came to the Rajya Sabha, by a Motion adopted by the House on 11.04.2017, the Bill was referred to the Select Committee B comprising of 25 members of Rajya Sabha. The Select Committee held seven meetings before submitting its report. Several members gave their response to the Committee. In the first meeting of the Committee held on 17.04.2017, Ministry of Social Justice and Empowerment placed certain clarification of the Minister which was noticed and incorporated in paragraph 6 of the Minutes which is to the following effect: “6. Secretary, Ministry of Social Justice and Empowerment further clarified that under the Backward Classes, unlike the SCs & STs, there are two lists i.c. the Central List and the State List. The Central List provides for education and employment opportunities in Central Government Institutions. In the State List, the States are free to include or exclude, whoever they wish to, in their Backward Classes List. As a result, if there is a certain category which is not in the Central List, it may still be found in the State List. That is the freedom and prerogative of the State Backward Classes Commission and that would continue to be there. E

370Copy pinpoint370. The Committee in its meeting held on 22.05.2017 asked several clarifications. One of the clarifications asked was “To what extent the rights of the States would be affected after coming into by the Bill under the Constitution of the Select Committee.”

371Copy pinpoint371. The Committee held sixth meeting on 03.07.2017. One of the proposed amendments have been noted in paragraph 21 of the Minutes, clarification on which was also noted in paragraph and the amendment was not accepted. The amendment proposed was “notwithstanding in any … in clause (9), the State Government shall continue to have power … socially and educationally backward classes.” G The above proposed amendment in Article 338B was not accepted since Ministry clarified that the power of the State is not affected. Paragraphs 21, 22 and 23 are as follows: “21. The Committee discussed the amendment wherein in article 338B a new sub-clause (10) was proposed to be inserted. H This sub-clause (10) would state that ‘notwithstanding anything

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provided in clause 9, the State Government shall continue to have A powers to identify Socially and Educationally Backward Classes’.

22. It was clarified by the Ministry to the Committee that the proposed amendment does not interfere with the powers of the State Governments to identify the Socially and Educationally Backward Classes. The existing powers of the State Backward B Classes Commission would continue to be there even after the passage of the Constitution (One Hundred and Twenty-third Amendment) Bill, 2017. (underlined by us)

23. The Committee held discussions on the amendments C proposed and in view of the explanation given by the Ministry, the Committee adopted clause 3 without any amendments.”

372Copy pinpoint372. Article 342A was also discussed by the Committee various set of Amendments were noted in reference to Article 342A. The Committee noticed amendments proposed in Article 342A in paragraph D 24 t the following effect: “24. The Committee then took up Clause 4 of the Bill for consideration. The Committee considered the following amendment proposed by certain Members: E (h) Sub-clause (1) of article 342A be modified as follows: “The President with respect to any State or Union Territory, and where it is a State, on the request made by the governor thereof, by public notification specify the socially and educationally backward classes for the purposes of making F provisions for reservation of appointment to an office or posts under Government of India or under any authority of Government of India or under the control of the Government of India or seats in Central Government educational institutions” (ii) Sub-clause (2) of article 342A be modified as follows: G “The President may, on the advise of the National Commission for Backward Classes include or exclude from the Central list of socially and educationally backward classes specified in a notification issued under clause (1).”; (iii) In article 342A insert clause (3) as follows: H

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A “The Governor of a State, by public notification specify the socially and educational backward classes for the purposes of making provisions for reservation of posts under that State or under any other authority of the State or under the central of the State, or seats in the educational institutions. within that State” and B (iv) In article 342A insert clause (4) as follows: “The Governor may, on the advice of the State Commission of Backward Classes include or exclude from the State list of socially and educationally backward classes specified in a C notification issued under clause (3)”

373Copy pinpoint373. The Committee, however, did not accept any of the amendments in view of explanation furnished by the Ministry. The 7th meeting was held on 14.07.2017. The clarification issued by the Secretary of Ministry of Social Justice and Empowerment has been noticed in paragraph 29 which is to the following effect: “29. ………She also clarified that conferring of constitutional status on the National Commission for Backward Classes would in no way take away the existing powers of the State Backward Classes Commissions. The only difference would be with regard to the Central List, where the power of exclusion or inclusion, after the Constitutional amendment, it would come to the Parliament with the recommendations of the NCBC.”

374Copy pinpoint374. After elaborate discussion, the Committee submitted its report dated 19.07.2017. One of the amendments which was moved before the Committee in Article 338B was noticed and not accepted. In the report the Ministry’s stand was that proposed amendment does not interfere with the power of the State Government to identify the socially and educationally backward classes. Paragraphs 47 and 48 of the report is as follows: “47. The Committee discussed the amendment wherein in article G 338B a new sub-clause (10) was proposed to be inserted. This sub-clause (10) would read as follows: ‘Notwithstanding anything provided in clause 9, the State Government shall continue to have powers to identify Socially and Educationally Backward Classes’ H

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48. It was clarified by the Ministry of Social Justice and A Empowerment to the Committee that the proposed amendment does not interfere with the powers of the State Governments to identify the Socially and Educationally Backward Classes. The existing powers of the State Backward Classes Commission would continue to be there even after the passage of the Constitution B (One Hundred and Twenty-third Amendment) Bill, 2017.”

375Copy pinpoint375. With regard to the proposed Article 342A of the Constitution, in paragraph 67 the Committee recorded the observation to the following effect: “67. The Committee observes that the amendments do not in any way affect the independence and functioning of State Backward Classes Commissions’ and they will continue to exercise unhindered their powers of inclusion/exclusion of other backward classes with relation to State List.”

376Copy pinpoint376. The Select Committee’s report came for consideration before the Rajya Sabha. During the debate, members have expressed their apprehension regarding adversely affecting the rights of the State by the proposed constitutional amendment. The Rajya Sabha passed the Bill on 31.07.2017 with amendment. Shri Thawarchand Gehlot, Minister of Social Justice and Empowerment proposed the Bill. Several members expressed their apprehension that Bill is not in the interest of the powers of the E State. Shri B.K. Hari Prasad speaking on the Bill stated following: “SHRI B.K. HARIPRASAD: Sir, repealing the Act of 1993 means that nothing would stay as it is and, again, the directions of the Supreme Court are being negated. So, this Commission would not help the Backward Classes and would take away the powers F of the States too. They want to centralize all the powers, as they have done in other cases. This cannot happen in the case of OBCS. As I have already said, though the Act was passed in Parliament way back in 1993 for purposes of employment, etc. and way back in 2007 for education, nothing has been implemented so far. If G they centralize all things like employment, identification of castes, etc., they would be doing gross injustice to the OBCS. They should think twice before scrapping the powers of the States because, as I have already mentioned, it is the States which identify various castes and communities. They know better than the people sitting H

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A here in Delhi. Hence, amending Article 342 and equating identification of OBC List to the SC/ST List should not be done. ...”

377Copy pinpoint377. Shri Bhupender Yadav has also stated in his speech that Amendment Bill cast threat to federalism and the State interest. In his statement (translated from Hindi) he said: “......that this will be a big threat to the federalism of the country and what will happen to the rights of the States? Here I want to say that at least this subject should go before the House and through the House to the country that about five and a half thousand castes and categories are under OBC in the Central List of the country and about ten and a half thousand castes and categories are under OBC in the States List. The work of their identification (SIC) and the power that Parliament has, is for five and a half thousand Central List only, the rights of the States will be safe with them and therefore, they have done the work of strengthening the federal structure through this amendment. For the first time, we have created the system that if the work of filling up the OBC posts will not be done, then the report of the OBC Commission will be placed before the Parliament. This should be the demand of democracy of the country that if the lower class people do not get justice, then all those documents should come before the Parliament with reasons. Provision to do the same has been made in this OBC Commission.”

378Copy pinpoint378. Shri Dilip Kumar Tirkey(Odisha), in his speech has referred to State List and Central List and stated (translated from Hindi) that powers to identify OBC are remained with the State. “Shri Dilip Kumar Tirkey (Odisha) : Sir, you gave me an opportunity to speak on the very important Amendment Bill, for this, I thank you. Sir, in our country, reservation for OBC was given about 24 years ago but there is a clear provision in Article 14-15 of the Constitution that the States can make special provision for the socio-economic backward classes. Our party BJD is in support of National Commission to be made for OBC and we are. supporting it but we have some issues and concerns and I would like to present them before the House. Sir, as per the present system, every State has its own OBC list and H

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on that basis, they get reservation. If, in a State, any caste falls under OBC list then it is not mandatory that it falls under the Central or other States list. The logic behind this is that there are different castes in every state and these different castes have different conditions. Now, after formation of the National Commission, one Central list will be made and only Centre shall notify them. Sir, this is the opinion of our party that the power of notification of OBC castes should remain with the States only because only the concerned state thoroughly knows the fact of number of castes in their States and what is their condition. Only the government knows thoroughly. They may face problems with central list. Therefore, I would like to appeal to Hon’ble Minister C and the House to add such a provision in the Bill whereby the work of adding or deleting any caste from the OBC list should be strictly done only on the recommendation of the state government to which it relates to. Sir, you can make national list after the uniformity comes gradually. When S.C., S.T, National Commission D was formed, it also took much time. In my opinion, after the separate S.C., S.T. Commission was formed, it got the status of Constitutional body in 2003. Therefore, 1 would like to appeal to the House and the government to reconsider and think on this point. Further, I would like to add one more thing that in the observation of Hon’ble Supreme Court, there was a provision of review after every 10 years so that other castes are not left, therefore, it should be reviewed after every 10 years. In my opinion, do the needful keeping it in view also, thank you.”

379Copy pinpoint379. Similar apprehension was expressed by T.K. Rangarajan and Shri Pradeep Tamta that Article 342A takes away the existing powers of the State to notify list of SEBC. After the debate, the Bill was presented and passed in Rajya Sabha.

380Copy pinpoint380. The Minister, Shri Thawarchand Gehlot, after the debate stated that apprehension expressed by the members that power of the State shall be affected and federal structure shall be damaged is incorrect. He stated that the power of the State shall not be affected in any manner, the State’s power to include and exclude in its list of OBC shall still continue. The statement (translated from Hindi) made by the Minster is to the following effect: “Sir, 4 major amendments are being made in the Constitution; one amendment pertains to part 10. of Article 338 wherein, OBC H

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A Commission did not have power to hear grievances of the people belonging to OBC category, that was to SC Commission, now this power is being given to the upcoming OBC Commission. There is provision of SC Commission under Article 338, provision of ST Commission is under 338(A) and now provision of constituting OBC Commission is being made under Article 338(B). SC B Commission and ST Commission already have Constitutional status similarly, Constitutional status is being given to OBC Commission as well. It simply means that the way rights, duties and power are given to the SC and ST Commission, same rights have also been given to them. Articles 341 and 342 provide for the inclusion and C removal of the castes of the respective categories. Article 342 (A) also provides for inclusion and removal of the castes belonging to OBC category by adopting the same procedure. Along with this, various types of definitions are given in Article 366; castes belonging to SC category are referred to in sub-clause 24 of it; castes belonging to ST category are referred to in sub-clause 25 D of it and now a new Article 26(C) is added to it. On the basis of it, castes belonging to OBC category will be defined. Hon’ble members were feared that the rights the State Commissions have at present that might be reduced and the federal system will be violated, pertaining to this I am to say that it will not at all happen. E There is no provision anywhere in the Articles to reduce their rights in any way. States have constituted OBC Commission in their respective territories since long ago. When the Kaka Kalelkar Committee was constituted and when it submitted its report, at that time also many States had constituted such Commission. The State List deals with work concerned with OBC category and notifies them. Thereafter, on the basis of Mandal Commission Report as well many States have constituted such Commissions. Supreme Court had also given verdict in 1992-1993, on that ground also many States had constituted OBC Commission in their respective territories. At present as many as 30-31 States have constituted such Commissions. Complete list of it is with me. Right to include or remove in the States List concerned with OBCS will remain as it is and it will not be violated in any manner. In addition, keeping in view the sentiments of Article 15 and 16, States have also exercised their powers pertaining to H

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making schemes in the interest of OBC category and making provisions in this behalf and such power will remain as it is. We are not making any amendment in Article 15 and Article 16. It simply means that State Commissions will not be affected in any way by this Constitutional amendment. Maximum number of Hon’ble Members have shared their views expressing their fear on this point. I, sincerely want to make it clear that State Governments have right and will remain as it is in future as well. No attempt will be made to tamper with them.”

381Copy pinpoint381. The Bill was passed in Rajya Sabhad on 31.07.2017 and thereafter it was taken by the Lok Sabha on 02.08.2017. In Lok Sabha the Minister of Social Justice and Empowerment again made a statement that the Commission will take decision related to the Central List It is useful to extract the statement(translated from Hindi) of the Minister made on 02.08.2017 which is to the following effect: “Sh. Thawar Chand Gehlot D Madam, this Commission, which will be made, will make decisions related to the Central List. As there is a common list related to Scheduled Caste and Scheduled Tribe of the State and the Centre, so is not the case here. In it, separate list is made for Centre as well as for States. The task of making the list of States is done by taking decision by the States Commission. E If any State Government proposes to include any Caste of that State in the Central List, then n this regard, this Commission will give opinion, otherwise the opinion of this Commission is neither binding regarding the State List nor the Commission will consider it. According to my own belief, I assure you that the report of the F Central Commission will not be binding on the subjects related to the State, it contains such provisions. You be assured and support this bill.”

382Copy pinpoint382. The Lok Sabha also passed the Constitution 123rd Amendment Bill, 2017 on 02.08.2018 which was agreed to by the Rajya Sabha on G 06.08.2018 and the Constitution (102nd Amendment) Act, 2018 after receiving the assent of the President of India on 11.08.2018 was published on 11.08.2018 and its enforcement has been notified with effect from 15.08.2018. The Constitution (102nd Amendment) Act inserted Article 338B and 342A and Article 366(26C) which are to the following effect: H

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A “338B. (1) There shall be a Commission for the socially and educationally backward classes to be known as the National Commission for Backward Classes. (2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice- B Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine. (3) The Chairperson, Vice-Chairperson and other Members C of the Commission shall be appointed by the President by warrant under his hand and seal. (4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission— D (a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes; (c) to participate and advise on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State; (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports the recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio- H

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economic development of the socially and educationally backward classes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes as the President may, subject to the provisions of any law made by Parliament, by rule specify. (6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations. (7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the State Government which shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations. (8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:— (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; G

(e) issuing commissions for the examination of witnesses and documents; (f) any other matter which the President may, by rule, determine. H

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A (9) The Union and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes.”. 342A. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the B Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. C (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”.

D “366(26C) “socially and educationally backward classes” means such backward classes as are so deemed under article 342A for the purposes of this Constitution;’.”

383Copy pinpoint383. After noticing the principles of statutory interpretation of Constitution and aids which can be resorted to in case of any ambiguity E in a word, we now proceed to look into the constitutional provisions inserted by the Constitution (102nd Amendment) Act.

384Copy pinpoint384. The first Article which has been inserted by the Constitution (One Hundred and Second Amendment) Act is Article 338B. The statement of objects and reasons of the Constitution (One Hundred and F Twenty Third Amendment) Bill, 2017, we had noticed above, in which one of the objects of the Constitutional amendment was: - “...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 G Scheduled Castes and the National Commission for Scheduled Tribes. (Underlined by us)”

385Copy pinpoint385. Prior to Constitution (One Hundred and Second Amendment), H there was already existing a National Commission for Backward Classes

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under the National Commission for Backward Classes, Act, 1993(in short A 1993 Act), which was a statutory commission. To comprehend the role and functions of the National Commission for Backward Class created by the Constitution (One Hundred and Second Amendment) Act, we need to notice the difference into the role and functions of the statutory commission and Constitutional commission. Section 9 of 1993 Act B provided for the functions of the Commission, which is to the following effect: - “9. Functions of the Commission.– (1) The Commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear C complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. (2) The advice of the Commission shall ordinarily be binding upon the Central Government.” D

386Copy pinpoint386. Section 11 provides for periodical revision of the list by the Central government which is to the following effect:- “11. Periodic revision of lists by the Central Government.– (1) The Central Government may at any time, and shall, at E the expiration of ten years from the coming into force of this Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes who have ceased to be backward classes or for including in such lists new backward classes. F (2) The Central Government shall, while undertaking any revision referred to in sub-section (1), consult the Commission. “

387Copy pinpoint387. The Act, 1993, indicates that functions of the Commission were confined to only examine requests for inclusion or exclusion from the list of backward classes. The list “was defined in Section 2C of the Act, 1993 to mean the list for reservation for appointment of backward G class in the services under the Government of India. Article 338B now inserted provides a much larger and comprehensive role to the Commission. The Act, 1993 required the Commission to give advice only to the Central Government. Article 338B now requires the Commission to give advice both to the Central Government and to the H

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A States, which is clear from sub-clauses (5),(7) and (9) of Article 338B, which is quoted as below:- “(5) It shall be the duty of the Commission— (a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes; (c) to participate and advise on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State; D (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports the recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the socially and educationally backward classes; and (f ) to discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes as the President may, subject to the provisions of any law made by Parliament, by rule specify. (7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the State Government which shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.

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(9) The Union and every State Government shall consult the A Commission on all major policy matters affecting the socially and educationally backward classes.”

388Copy pinpoint388. The most important difference which is now brought by Article 338B is sub-clause (9), which mandates that every State Government to consult the Commission on all major policy decisions affecting socially and educationally backward classes. Sub-clause (9) is engrafted in mandatory form by using expression “shall”. The States thus are now bound to consult the Commission on all major policy matters affecting socially and educationally backward class. For the purposes of this case, we need not elaborate on the expression “policy matter” occurring in sub-clause (9) of Article 338B. However, in the facts of the present case, the decision of the Maharashtra Government which culminated in 2018 Act to exceed ceiling limit of 50 percent fixed for reservation as per existing law and to give separate reservation to Maratha in employment under State and in educational institutions of the State where all policy decisions within the meaning of clause (9) of Article 338B. D

389Copy pinpoint389. The word ‘consultation’ occurring in sub-clause (9) is expression which has been used in several Articles of the Constitution i.e. Article 124, 207, 233, 234, 320 and host of other articles. We may notice the content and meaning of the expression ‘consultation’.

390Copy pinpoint390. The Black’s Law Dictionary, 10 th Edition, defines E ‘consultation’ as follows:- “Consultation, n.(15c) 1. The act of asking the advice or opinion of someone(such as a lawyer). 2. A meeting in which parties consult or confer. 3. Int’l law. The interactive methods by which states seek to prevent or resolve disputes.- consult, vb.- F consulting, consultative, adj.” Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd Edition, defines ‘consult’: “Consult. ‘Consult implies a conference of two or more persons or the impact of two or more minds brought about in G respect of a topic with a view to evolve a correct or atleast a satisfactory solution. It must be directed to the essential points of the subject under discussion and enable the consultor to consider the pros and cons before coming to a decision. The consultation H

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A may be between an uninformed person and an expert or between two experts.”

391Copy pinpoint391. The ‘consultation’ or deliberation is not complete or effective unless parties there to makes their respective points of view known to the others and examine the relative merit of their view. The consultation B is a process which requires meeting of minds between the parties involves in the process of consultation on the material facts and points involved. The consultation has to be meaningful, effective and conscious consultation. We may now notice few cases of this Court where the expression ‘consultation’ as occurring in the Constitution of India has been dealt with. C

392Copy pinpoint392. In Chandramouleshwar Prasad versus The Patna High Court and others, (1969) 3 SCC 56, this Court had occasion to consider the expression ‘consultation’ as occurring in Article 233 of the Constitution. The Constitution Bench of this Court explaining the expression ‘consultation’ held that ‘consultation’ is not an empty formality and it should be complete and effective. Following has been laid down in paragraph 7 of the judgment: - “7. ...Consultation with the high Court under Article 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion. The Governor cannot discharge his function under Article 233 if he makes an appointment of a person without ascertaining the High Court’s views in regard thereto... ...Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has a counter proposal in his mind which is not communicated to the proposer the direction to give effect to the counter proposal without anything more, cannot be said to have been issued after consultation. In our opinion, the notification of October 17, 1968 was not in compliance with Article 233 of the Constitution. In the absence of consultation the validity of the notification of October 17, 1968 cannot be sustained.”

393Copy pinpoint393. In Union of India versus Shankalchand Himatlal Sheth H and another, (1977) 4 SCC 193, the Constitution Bench of this Court

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had occasion to examine Article 222 and the expression ‘consult’. A Explaining the word ‘consult’, Justice Y.V. Chandrachud, in paragraphs 38 and 39 laid down following: - “38. In Words and Phrases (Permanent Edition, 1960, Volume 9, page 3) to ‘consult’ is defined as ‘to discuss something together, to deliberate’. Corpus Juris Secundum (Volume 16A, B Ed. 1956, page 1242) also says that the word ‘consult’ is frequently defined as meaning ‘to discuss something together, or to deliberate’. Quoting Rollo v. Minister of Town and Country Planning(1) and Fletcher v. Minister of Town and Country Planning(2) Stroud’s Judicial Dictionary (Volume 1' Third Edition, 1952, page 596) says in the context of the expression “ consultation with any local authorities” that “Consultation means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender advice”. Thus, deliberation is the quintessence of consultation. That implies that each individual case must be considered separately on the basis of its own facts. Policy transfers on a wholesale basis which leave no scope for considering the facts of each particular case and which are influenced by one-sided governmental considerations are outside the contemplation of our Constitution. E

39. It may not be a happy analogy, but it is commonsense that he who wants to ‘consult’ a doctor cannot keep facts up his sleeve. He does so at his peril for he can receive no true advice unless he discloses facts necessary for diagnosis of his malady. Homely analogies apart, which can be multiplied, a decision of the Madras High Court in R. Pushpam & Anr. v. Stale of F Madras(1) furnishes a good parallel. section 43(b), Madras District Municipalities Act, 1920, provided that for the purpose of election of Councillors to a Municipal Council, the Local Government ‘after consulting the Municipal Council’ may determine the wards in which reserved seats shall be set apart. While setting aside the G reservation made in respect of one of the wards on the ground that the Local Government had failed to discharge its statutory obligation of consulting the Municipal Council, Justice K. Subba Rao, who then adorned the Bench of the Madras High Court, observed : “The word ‘consult’ implies a conference of two or H

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A more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution.” In, order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final B decision.”

394Copy pinpoint394. In IndianAdministrative Services (S.C.S.) Association, U.P. and Others,(1993) Supp.(1) SCC 730, this Court had occasion to explain the expression ‘consultation’ as occurring in All India Services Act, 1951. In paragraph 26, following conclusions were recorded by this C Court:- “26.(1) Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or at least satisfactory solution. There should be meeting of minds D between the proposer and the persons to be consulted on the subject of consultation. There must be definite facts which constitute the foundation and source for final decision. The object of the consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory. E ... ... ... ...”

395Copy pinpoint395. The word ‘consultation’ as occurring in Articles 124, 216, 217 and 222 came for consideration before the Constitution Bench of this Court in Supreme Court Advocates on Record Association and others versus Union of India, (1993) 4 SCC 441. Justice Ratnavel F Pandian delivering a concurring opinion has elaborately dealt with the consultation. In paragraph 112, following has been stated: - “112. It is clear that under Article 217(1), the process of ‘consultation’ by the President is mandatory and this clause does not speak of any discretionary ‘consultation’ with any other G authority as in the case of appointment of a Judge of the Supreme Court as envisaged in Clause (2) of Article 124. The word ‘consultation’ is powerful and eloquent with meaning, loaded with undefined intonation and it answers all the questions and all the various tests including the test of primacy to the opinion of the CJI. This test poses many tough questions, one of them being, H

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what is the meaning of the expression ‘consultation’ in the context A in which it is used under the Constitution. As in the case of appointment of a Judge of the Supreme Court and the High Court, there are some more constitutional provisions in which the expression ‘consultation’ is used......”

396Copy pinpoint396. When the Constitutional provision uses the expression B ‘consultation’ which ‘consultation’ is to be undertaken by a Constitutional authority like National Commission for Backward Classes in the present case, the ‘consultation’ has to be meaningful, effective with all relevant materials and information placed before Commission. As observed above, the National Backward Class Commission has been given constitutional status under Article 338B has now been entrusted with numerous functions regarding the backward classes. The Commission is now to advice not only the Union Government but the State Government also and various measures as enumerated in sub-clause(5). The objective of sub-clause (9) of Article 338B is to ensure that even the States did not take any major policy decision without consulting the Commission who is competent to provide necessary advice and solution keeping in view the larger interest of backward class. We thus are of the considered opinion that the consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per sub-clause(9) of Article 338B which mandatory requirement cannot be by-passed by any State while the State takes any major policy decision. E

397Copy pinpoint397. It is true that the expression ‘consultation’ in sub-clause (4) of Article 338B is not to be read as concurrence but as held above, ‘consultation’ has to be effective and meaningful. The object of consultation is that ‘consultee’ shall place the relevant material before person from whom ‘consultation’ is asked for and advice and opinion given by consulting authority shall guide the authority who has asked for consultation.

398Copy pinpoint398. The regime which was invoked prior to insertion of Article 342A was that central list was issued by the Central Government under 1993 Act and State lists were issued by State Governments. It was also open for the State to request for exclusion or inclusion from the list of OBCs of Central list. The same procedure is to issue even after insertion of Article 342A with regard to Central list.

399Copy pinpoint399. The appellants insist that Article 342A has to be given a literal interpretation. The plain language of an Article has to be given full H

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A effect irrespective of intention of Parliament as claimed by the Attorney General as well the learned counsel for the State. The submission of the appellants is that Article 342A borrows the same scheme as is delineated in Articles 341 and 342 of the Constitution. It is submitted that when Article 342A borrows the same scheme which is clear from the fact that sub-clause (1) of Article 342A is para mataria with Articles 341(1) B and 342(1), it is clearly meant that power to identify educationally and socially backward classes is only with the President but after consultation with the Governor of the State. It is submitted that expression the “socially and educationally backward classes” which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory” has to be given meaning and it is only list issued by public notification under sub-clause (1) which is the list of backward classes of a State or Union territory. No other list is contemplated. Hence, the State has no authority or jurisdiction to identify backward classes or issue any list that is so called State List. Further interpreting sub-clause (2) of Article 342A, it is submitted that use of expression “Central List” in sub-clause (2) is only to refer the list specified by the notification in sub-clause (1) of Article 342A and expression Central List has been used in the above context.

400Copy pinpoint400. Elaborating the argument, it is further contended that the definition given in the Article 366(26C) which provides that socially and educationally backward classes means such backward classes as are so deemed under Article 342A for the purposes of this Constitution, the use of the expression “for the purposes of this Constitution” clearly means that it is for Articles 15 and 16 also, the list which is referred to under Article 342A has to be utilised. The definition under Article 366(26C) F does not contemplate any other list apart from list under Article 342A.

401Copy pinpoint401. In contra with above interpretation put by the petitioner, learned Attorney General and learned counsel for the State submit that the Constitutional provision is to be interpreted as per the intention of the Parliament and Parliament having never intended to take away the power G of the State to identify backward classes in the State for the purpose of employment in the State, Article 342A cannot be read in a manner as claimed by the appellants. The use of expression “Central List” under sub-clause (2) of Article 342A is decisive since the Parliament clearly intended to confine the list as contemplated by Article 342A(1) as a Central List for the purposes of employment in the Central Government H services and Central Government organisations.

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402Copy pinpoint402. Primarily the language employed in a statute and the A Constitutional provision is determinative factor of legislative intention. The legislative intention opens two clues. Firstly, meaning of the word in the provision and secondly, the purpose and object pervading through the statutes. It is well settled that primary rule of construction is that the intention of the legislation must be found in the words used by the B Legislature itself. This Court apart from the above well settled principles of statutory interpretation has laid down some further rules of interpretation to interpret the constitutional provision. We may profitably refer to a Constitution Bench judgment of this Court in State (NCT) of Delhi vs. Union of India and another, 2018(8) SCC 501. The Constitution Bench in the above case had occasion to interpret the C Constitutional provision of Article 239AA which was inserted by Constitution (Sixty Ninth Amendment) Act, 1991. The Constitution Bench of this Court interpreted Article 239-AA by referring to principles of the constitutional objectivity, federal functionalism, democracy and pragmatic federalism. Justice Dipak Misra, CJ, speaking for himself, A.K. Sikri D and A.M. Khanwilkar, JJ., laid down that although, primarily, it is a literal rule which is considered to be the norm while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provisions, sometimes, does not serve the purpose of a living document. In paragraph 135 following was laid down: E “135. The task of interpreting an instrument as dynamic as the Constitution assumes great import in a democracy. The constitutional courts are entrusted with the critical task of expounding the provisions of the Constitution and further while carrying out this essential function, they are duty-bound to ensure and preserve the rights and liberties of the citizens without disturbing the very fundamental principles which form the foundational base of the Constitution. Although, primarily, it is the literal rule which is considered to be the norm which governs the courts of law while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provision may, sometimes, annihilate the quality of poignant flexibility and requisite societal progressive adjustability. Such an approach may not eventually subserve the purpose of a living document.” H

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403Copy pinpoint403. The Constitution Bench further observed that a theory of purposive interpretation has gained importance where the Courts shall interpret the Constitution in the purposive manner so as to give effect to its intention. In paragraphs 149, 150, 155 and 156 following was laid down: B “149. Having stated the principles relating to constitutional interpretation we, as presently advised, think it apt to devote some space to purposive interpretation in the context, for we shall refer to the said facet for understanding the core controversy. It needs no special emphasis that the reference to some precedents has to be in juxtaposition with other concepts and principles. As it can be gathered from the discussion as well as the authorities cited above, the literal rule is not to be the primary guiding factor in interpreting a constitutional provision, especially if the resultant outcome would not serve the fructification of the rights and values expressed in the Constitution. In this scenario, the theory of purposive interpretation has gained importance where the courts shall interpret the Constitution in a purposive manner so as to give effect to its true intention. The Judicial Committee in Attorney General of Trinidad and Tobago v. Whiteman [Attorney General of Trinidad and Tobago v. Whiteman, (1991) 2 AC 240 : (1991) 2 WLR 1200 (PC)] has observed: (AC p. 247) E “The language of a Constitution falls to be construed, not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit.…”

150. In S.R. Chaudhuri v. State of Punjab [S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126] , a three- F Judge Bench has opined that constitutional provisions are required to be understood and interpreted with an object-oriented approach and a Constitution must not be construed in a narrow and pedantic sense. The Court, while holding that the Constituent Assembly Debates can be taken aid of, observed the following: (SCC p. G 142, para 33) “33. … The words used may be general in terms but, their full import and true meaning, has to be appreciated considering the true context in which the same are used and the purpose which they seek to achieve.” H (emphasis supplied)

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155. The emphasis on context while interpreting A constitutional provisions has burgeoned this shift from the literal rule to the purposive method in order that the provisions do not remain static and rigid. The words assume different incarnations to adapt themselves to the current demands as and when the need arises. The House of Lords in R. (Quintavalle) v. Secy. of B State for Health [R. (Quintavalle) v. Secy. of State for Health, (2003) 2 AC 687 : (2003) 2 WLR 692 : 2003 UKHL 13 (HL)] ruled: (AC p. 700, para 21)

“21. … The pendulum has swung towards purposive C methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson [River Wear Commissioners D v. Adamson, (1877) LR 2 AC 743, at p. 763 (HL)] . In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context.…” (emphasis supplied) E

156. Emphasising on the importance of determining the purpose and object of a provision, Learned Hand, J. in Cabell v. Markham [Cabell v. Markham, 148 F 2d 737 (2d Cir 1945)] enunciated: F “Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some G purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”

404Copy pinpoint404. The shift from literal rule to purposive and objective interpretation of a constitutional document is adopted since the Constitution is not to be interpreted in static and rigid manner, the H

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A Constitution is an organic and living document which needs to be interpreted with cardinal principals and objectives of the Constitution. The shift from literal to purposive method of interpretation has been now more and more, being adopted for interpreting a constitutional document. The Constitution Bench in State (NCT of Delhi) case (supra) has also noticed one more principle which is to be applied for interpretation of a constitutional document that is constitutional culture and pragmatism. In paragraphs 165, 166 and 169 following was held: “165. The constitutional courts, while interpreting the constitutional provisions, have to take into account the constitutional culture, bearing in mind its flexible and evolving nature, so that the provisions are given a meaning which reflect the object and purpose of the Constitution.

166. History reveals that in order to promote and nurture this spirit of constitutional culture, the courts have adopted a pragmatic approach of interpretation which has ushered in an era of “constitutional pragmatism”.

169. Further, the Court also highlighted that a balance between idealism and pragmatism is inevitable in order to create a workable situation ruling out any absurdity that may arise while adopting either one of the approaches: (Supreme Court E Advocates-on-Record Assn. case [Supreme Court Advocates- on-Record Assn. v. Union of India, (2016) 5 SCC 1] , SCC pp. 320-31 & 611, paras 145 & 766) “145. … ‘468. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and Integrated to make the system workable in a satisfactory manner.’ [Ed.: As observed in Supreme Court Advocates-on- Record Assn. v. Union of India, (1993) 4 SCC 441, p. 699, para 468.] H * * *

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766. It is this pragmatic interpretation of the Constitution A that was postulated by the Constituent Assembly, which did not feel the necessity of filling up every detail in the document, as indeed it was not possible to do so.””

405Copy pinpoint405. Justice Dipak Misra in the Constitution Bench further laid down in paragraph 284.11: B “284.11. In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the constitutional courts, with the vision to realise the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must C not shy away from performing this foremost duty to achieve constitutional functionalism by adopting a pragmatic approach. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution which we call constitutional pragmatism. The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a D democratic set-up cannot be allowed to lose its purpose in simple semantics.”

406Copy pinpoint406. In the above judgment the Constitution Bench laid down that the purposive method has gained importance over the literal approach. One of us (Justice Ashok Bhushan) while delivering a concurring judgment E in the Constitution Bench judgment of State (NCT of Delhi) (supra) has also laid down that the Constitutional interpretation has to be purposive taking into consideration the need of time and constitutional principles. It was further held that the intent of Constitution Framers and object and purpose of Constitutional amendment always throw light on the F Constitutional provisions. Following was laid down in paragraph 537: “537. From the above discussions, it is apparent that constitutional interpretation has to be purposive taking into consideration the need of time and constitutional principles. The intent of Constitution Framers and object and purpose of G constitutional amendment always throw light on the constitutional provisions but for interpreting a particular constitutional provision, the constitutional scheme and the express language employed cannot be given a go-by. The purpose and intent of the constitutional provisions have to be found from the very H

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A constitutional provisions which are up for interpretation. We, thus, while interpreting Article 239-AA have to keep in mind the purpose and object for which the Sixty-ninth Constitution (Amendment) Act, 1991 was brought into force. After noticing the above principles, we now proceed further to examine the nature and content of the constitutional provisions.” B

407Copy pinpoint407. We may also notice a seven-Judge Bench judgment of this Court on principles of interpretation of Constitution. In Abhiram Singh vs. C.C. Commachen (Dead) By Legal Representatives and others, (2017) 2 SCC 629, Justice Madan B. Lokur, with whom Justice T.S. Thakur, CJ and Justice S.A. Bobde, concurred noticed the conflict C between a literal interpretation or purposive interpretation. It was held that interpretation has, therefore, to consider not only the context of the law but the context in which the law is enacted. Justice Lokur extracted Bennion on Statutory Interpretation in paragraph 38 to the following effect: D “38. In Bennion on Statutory Interpretation[6th Edn. (Indian Reprint) p. 847] it is said that: “General judicial adoption of the term “purposive construction” is recent, but the concept is not new. Viscount Dilhorne, citing Coke, said that while it is now fashionable to talk of a purposive construction of a statute the need for such a construction has been recognized since the seventeenth century. [Stock v. Frank Jones (Tipton) Ltd., (1978) 1 WLR 231 at p. 234] In fact the recognition goes considerable further back than that. The difficulties over statutory interpretation belong to the language, and there is unlikely to be anything very novel or recent about their solution … Little has changed over problems of verbal meaning since the Barons of the Exchequer arrived at their famous resolution in Heydon case [Heydon Case, (1584) 3 Co Rep 7a : 76 ER 637] . Legislation is still about remedying what is thought to be a defect in the law. Even the most “progressive” legislator, concerned to implement some wholly normal concept of social justice, would be constrained to admit that if the existing law accommodated the notion there would be no need to change it. No legal need that is ….”

408Copy pinpoint408. Approving the purposive construction the Court also held that a pragmatic view is required to be taken and the law interpreted purposefully. In paragraph 39 following was observed:

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“39. We see no reason to take a different view. Ordinarily, A if a statute is well drafted and debated in Parliament there is little or no need to adopt any interpretation other than a literal interpretation of the statute. However, in a welfare State like ours, what is intended for the benefit of the people is not fully reflected in the text of a statute. In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses. …”

409Copy pinpoint409. Justice T.S. Thakur delivering his concurring opinion in paragraph 74 held that an interpretation which has the effect of diluting the constitutional objective should be avoided and the purpose of the constitution be kept in mind. In paragraphs 74, 76 and 77 following was observed: “74. The upshot of the above discussion clearly is that under the constitutional scheme mixing religion with State power is not permissible while freedom to practice, profess and propagate religion of one’s choice is guaranteed. The State being secular in character will not identify itself with any one of the religions or religious denominations. This necessarily implies that religion will not play any role in the governance of the country which must at all times be secular in nature. The elections to the State Legislature or to Parliament or for that matter or any other body in the State is a secular exercise just as the functions of the elected representatives must be secular in both outlook and practice. Suffice it to say that the constitutional ethos forbids mixing of religions or religious considerations with the secular functions of the State. This necessarily implies that interpretation of any statute must not offend the fundamental mandate under the Constitution. F An interpretation which has the effect of eroding or diluting the constitutional objective of keeping the State and its activities free from religious considerations, therefore, must be avoided. This Court has in several pronouncements ruled that while interpreting an enactment, the Courts should remain cognizant of the constitutional goals and the purpose of the Act and interpret the G provisions accordingly.

76. Extending the above principle further one can say that if two constructions of a statute were possible, one that promotes the constitutional objective ought to be preferred over the other that does not do so. H

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A 77. To somewhat similar effect is the decision of this Court in State of Karnataka v. Appa Balu Ingale [State of Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469 : 1994 SCC (Cri) 1762] wherein this Court held that as the vehicle of transforming the nation’s life, the Court should respond to the nation’s need and interpret the law with pragmatism to further public welfare and to make the constitutional animations a reality. The Court held that Judges should be cognizant of the constitutional goals and remind themselves of the purpose of the Act while interpreting any legislation. The Court said: (SCC p. 486, para 35) “35. The Judges, therefore, should respond to the human situations to meet the felt necessities of the time and social needs, make meaningful the right to life and give effect to the Constitution and the will of the legislature. This Court as the vehicle of transforming the nation’s life should respond to the nation’s needs and interpret the law with pragmatism to further public welfare to make the constitutional animations a reality. Common sense has always served in the court’s ceaseless striving as a voice of reason to maintain the blend of change and continuity of order which is sine qua non for stability in the process of change in a parliamentary democracy. In interpreting the Act, the Judge should be cognizant to and always keep at the back of his/her mind the constitutional goals and the purpose of the Act and interpret the provisions of the Act in the light thus shed to annihilate untouchability; to accord to the Dalits and the Tribes right to equality; give social integration a fruition and make fraternity a reality.””

410Copy pinpoint410. Applying the above principles laid down by the Constitution Benches of this Court on interpretation of a Constitution, in the fact of the present case, we need to discern the intention of Parliament in inserting Article 342A. We have already found that reports of the Parliamentary Committee and the statement made by the Minister while moving the G Bill are relevant aids for a construction of constitutional provision. The Parliamentary Committee report makes it clear that after obtaining the clarification from the Ministry that the Constitutional Amendment is not intended to take away the right of identification of backward class from a State. It submitted its report to the effect that rights of State Backward Classes Commission shall continue unhindered. The Parliamentary H

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Standing Committee further noticed that the list which is contemplated A under Article 342A is only Central List of the backward classes for a particular State for the purposes of services under the Government of India and its organizations.

411Copy pinpoint411. We have further noticed the statement of Minister of Social, Justice and Empowerment, made both in Rajya Sabha and Lok Sabha. B The Minister stated the task of preparing list of the State of the Backward Classesis taken by the State Commission and the amendment shall have no effect on the right of the State and State Backward Classes Commission to identify the backward classes. We have extracted above the relevant statement of Minister in the foregoing paragraphs. C

412Copy pinpoint412. We may further notice that the above statement was made by the Minister of Social Justice and Empowerment in the background of several members of the Parliament expressing their apprehension that the Constitution 102nd Amendment shall take away rights of the States to identify backward classes in each State. The Minister of Social D Justice and Empowerment for allaying their apprehension made a categorical statement that the Constitutional Amendment shall not affect the power of the State, the State Backward Classes Commission to identify the backward classes in the State.

413Copy pinpoint413. Learned Attorney General for India in his submission has referred to the statement of Minister of Social Justice and Empowerment as well as Parliamentary Select Committee report and has emphasised that the Parliamentary intention was never to take away the rights of the States to identify backward classes in their respective States. Learned Attorney General has referred to and relied on the Union’s stand taken in Writ Petition (C) No.12 of 2021-Dinesh B. vs. Union of India & Ors., where the stand of the Union on the Constitution (102nd Amendment) Act, 2018 was made clear in paragraph 11. We extract paragraph 11 of the above affidavit relied by the learned Attorney General which is to the following effect: G “11. That, from the above, it is evident that the power to identify and specify the SEBCs lies with Parliament, only with reference to the Central List of SEBCs. The State Governments may have their separate State Lists of SEBCs for the purpose of providing reservation in recruitment to State Government services or H

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A admission in State Government educational institutions. The castes/ communities included in such State Lists of SEBCs may differ from the castes/communities included in the Central List of SEBCs. It is submitted that the inclusion or exclusion of any caste or community in the State List of SEBCs is the subject of the concerned State Government and the Government of India has no role in the matter.”

414Copy pinpoint414. It is, thus, clear as sun light that Parliamentary intention discernible from Select Committee report and statement of Ministry of Social Justice and Empowerment is that the intention of the Parliament for bringing Constitutional amendment was not to take away the power of the State to identify backward class in the State.

415Copy pinpoint415. The Parliamentary intention was further discernible that the list which was contemplated to be issued by President under Article 342A was only the Central List which was to govern the services under the Government of India and organisations under the Government of D India. When the Parliamentary intention is discernable and admissible as aid to statutory interpretation, we see no reason not to interpret Article 342A in manner as per the intention of the Parliament noticed above.

416Copy pinpoint416. We also need to reflect on the submission of petitioner that the scheme under Article 342A has to be interpreted in accordance with E already existing scheme under Articles 341 and 342. There is no doubt that the Constitutional scheme under Article 342A (1) and those of Article 341(1) and 342(1) are same but there is a vast difference between the list of SC and ST as contemplated by Articles 341 and 342 of those of backward classes which now is contemplated under Article 342A.

417Copy pinpoint417. The concept of Scheduled Castes was well known even before the enforcement of the Constitution. There was already Scheduled Castes list in existence when the Constitution was enforced. We may refer to Government of India Act, 1935, Schedule (1), paragraph 26 which defines the Scheduled Castes in the following words: G “26.-(1) In the foregoing provisions of this Schedule the following expressions have the meanings hereby assigned to them, that is to say:- “…… …… …

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“the scheduled castes” means such castes, races or tribes A or parts of or groups within castes, races or tribes, being castes, races, tribes, parts or groups which appear to His Majesty in Council to correspond to the classes of persons formerly known as “the depressed classes”, as His Majesty in Council may specify; and…”

418Copy pinpoint418. The Government of India has also issued a Scheduled Castes B List under the Government of India Scheduled Castes Order 1936. The Constitution framers were, thus, well aware with the concept of Scheduled Castes and Scheduled Tribes and hence the same scheme regarding SC was continued in the Constitution by way of Article 341 of the Constitution. C

419Copy pinpoint419. The expression ‘backward class’ does not find place in the Government of India Act, 1935. The Constitution framers recognising that backward classes of citizens need affirmative action by the State to bring them in the main stream of the society has engrafted a special provision for backward classes. Under Article 16(4) the State was empowered to make any provision for reservation of appointment or D posts in favour of any backward class of citizens not adequately represented in services. When the Constitution empowers the State to make any provision, the provision may embrace all aspects of measures including identification of the backward classes. The Constitution Bench of this Court in Indra Sawhney has accepted and recognised this position. E It is both the States and Union who are entitled to identify backward classes of citizens and to take measures. Indra Sawhney had, thus, issued directions to Union as well as States to constitute permanent body for identification and for taking necessary measures. The power to identify the backward classes was with the State and there are no intentions that the power of the State as occurring in Articles 15(4) and F 16(4) in any manner has been taken away by the Constitutional amendment. The power given to the State under Articles 15(4) and 16(4) are for the benefit of backward classes of citizens. Any limitation or limitation of such power cannot be readily inferred and has to be expressly provided by the Constitution. The submission of the petitioner that Article G 342A which relates to socially and educationally backward class should be read in the Constitutional scheme as delineated under Articles 341 and 342, thus, cannot be accepted.

420Copy pinpoint420. Now, we come to the expression “Central List” as occurring in Article 342A (2). In pursuance of the direction issued by the Constitution H

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A Bench of this Court in Indra Sawhney, the Parliament has enacted the National Commission for Backward Classes Act, 1993. Section 2(c) of the Act defines ‘lists’ in the following words: “Section 2(c) “lists” means lists prepared by the Government of India from time to time for purposes of making provision for B the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India;”

421Copy pinpoint421. Section 9 of the Act defines the functions of the Commission. Section 9 provides as follows: “9. Functions of the Commission.–(1) The Commission shall examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion D or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. (2) The advice of the Commission shall ordinarily be binding upon the Central Government.”

422Copy pinpoint422. The National Commission for Backward Classes Act, 1993 E clearly indicates that the Parliamentary enactment was related to services under the Government of India and the Act, 1993 was not to govern or regulate identification of backward classes by the concerned State. The States had also enacted “State Legislation” constituting Backward Classes Commission. In the State of Maharashtra, Maharashtra State Backward F Classes Commission, Act was enacted in 2005. Along with passing of the Constitution 102nd Amendment, the National Commission for Backward Classes (Repeal) Act, 2018 was passed which received the assent of the President of India on 14.08.2018. We may notice Section 2 of the Repeal Act which is to the following effect: “Section 2.(1) The National Commission for Backward Classes G Act, 1993 is hereby repealed and the National Commission for Backward Classes constituted under sub-section (1) of section 3 of the said Act shall stand dissolved. (2) The repeal of the National Commission for Backward Classes Act, 1993 shall, however, not effect,— H

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(i) the previous operation of the Act so repealed or anything A duly done or suffered thereunder; or (ii) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed, or (iii) any penalty, confiscation or punishment incurred in respect of any contravention under the Act so repealed; or B

(iv) any proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, confiscation or punishment as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty, confiscation or punishment may be imposed or made as if that Act had not been repealed. (3)... … … …”

423Copy pinpoint423. The National Commission for Backward Classes by the Constitutional 102nd Amendment was, thus, given constitutional status which was available to the Commission which as a statutory Commission under 1993 enactment. The Parliamentary Select Committee report dated 17.07.2017 and the Minutes of the Parliamentary Standing Committee as referred to and extracted above indicates that it was well known that there are two lists of Backward Classes, one “Central List” and other “State List”. During the Parliamentary Committee report it was clarified and expressed that Constitutional amendment is only with regard to “Central List” which expression was expressly included in sub-clause (2) of Article 342A.

424Copy pinpoint424. We may also look into the use of expression “Central List” F under Article 342A in contradiction to the words, “list of Scheduled Castes”, “list of Scheduled Tribes” as occurring in Articles 341(2) and 342(2) which are to following effect: “341.Scheduled Castes. -(1) The President may with respect to any State or Union territory, and where it is a State , after consultation with the Governor thereof, by public notification, G specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. H

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A 342. Scheduled Tribes.-(1)The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that B State or Union territory, as the case may be.”

425Copy pinpoint425. Article 341(1) uses expression ‘Scheduled Castes’ and the same expression finds place in sub-clause (2) when the sub-clause (2) of the Article uses expression “list of Scheduled Castes” specified in notification. Similarly, Article 342(2) also uses expression ‘list of C Scheduled Tribes’ specified in the notification.

426Copy pinpoint426. Article 342A(2) uses an extra word “Central” before the expression ‘List’ of socially and educationally backward classes. If it is to be accepted that the constitutional scheme of Articles 341 and 342 was to be followed and carried in Article 342A also, the same expression, D which was necessary to be used i.e. “list of socially and educationally backward classes” which use would have been in line of the expression occurring in Article 341(2) and 342(2). It is, thus, clear that an extra word, namely, ‘Central’ has been added in Article 342(2) before the expression ‘list of socially and educationally backward classes’. When E the statute or Constitution uses an additional word it has to be presumed that the use of additional word is for a purpose and object and it is not superfluous or redundant.

427Copy pinpoint427. While interpreting a constitutional provision, no word shall be treated as superfluous and redundant. We have noticed above that the list for services in the Government of India was Central List which was being prepared prior to the Constitution Amendment, under Act, 1993.

428Copy pinpoint428. We may also deal with the submission of the petitioner that the word ‘Central List’ was used in sub-clause (2) of Article 342A to refer the public notification specifying the socially educationally backward classes issued by the President of India under sub-clause (1). The expression ‘list of socially and educationally backward classes’ specified in notification under sub-clause (1) is already there under sub-clause (2) which clearly meant and referred to notification issued under sub-clause (1), hence, there was no necessity for use of an additional word ‘Central’ in sub-clause (1) which was wholly superfluous and redundant.We are of the view that the word ‘Central’ was used for a purpose and object,

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the use of the ‘Central’ was only with the intent to limit the list issued by the President to Central services. Sub-clause (1) of Article 342 and sub- clause (2) of Article 342A has to be given harmonious construction and we read both the Articles together to find out purpose and intent of the list issued by the President under sub-clause (1). It is the ‘Central List’ which could be amended by the Parliament by exercising power under sub-clause (2) of Article 342A.

429Copy pinpoint429. A question may be asked that when under 1993 Act “Central List” was prepared by Government of India and the “State list” was prepared by States, what was the necessity to bring the 102 nd Constitutional Amendment if the same regime of two lists i.e. “Central list” and “State list” was to continue? For answering the question we first look into the 1993 Act to understand the nature of exercise undertaken under the Act regarding “Central List” and change in the exercise, if any, after 102nd Constitutional Amendment.

430Copy pinpoint430. We have already noticed Section 2(c) and 9 of 1993 Act. We may also notice Section 11 of 1993 Act which provides: - D

“11. Periodic revision of lists by the Central Government.– (1) The Central Government may at any time, and shall, at the expiration of ten years from the coming into force of this Act and every succeeding period of ten years thereafter, undertake revision of the lists with a view to excluding from such lists those classes E who have ceased to be backward classes or for including in such lists new backward classes. (2) The Central Government shall, while undertaking any revision referred to in sub-section (1), consult the Commission.”

431Copy pinpoint431. Section 2(c), 9 and 11 makes it clear that list prepared by the F Central Government from time to time for reservation of appointments or posts in favour of backward classes in the services under the Government of India and any local or other authority, within the territory of India or under the control of Government of India was an statutory exercise of the Government of India under the 1993 Act. All the lists G which were issued after 1993 Act by the Government of India were by executive orders issued from time to time. For what purpose, 102nd Constitutional Amendment was made? Answer is not for to seek.

432Copy pinpoint432. Under the Government of India Act, 1935, the list of “the Scheduled Castes” was to be specified by His Majesty in Council as per H

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A clause 26 of Schedule I of the Government of India Act, 1935, which was also an executive function. The legal regime of the list of Scheduled caste saw a sea change under the Constitution of India as reflected in Article 341 and 342. What was the change brought by Constitution of India regarding the list of Scheduled Caste can be well understood when we look into the debates of the Constituent Assembly on Draft Articles B 300A and 300B which corresponds to Articles 341 and 342 of the Constitution of India.

433Copy pinpoint433. Dr. B.R. Ambedkar moving the Amendment briefly outlined the object and purpose of the Constitutional provisions in debates dated 17.09.1949 in following words: - C “...The object of these two articles, as I stated, was to eliminate the necessity of burdening the Constitution with long lists of Scheduled Castes and Scheduled Tribes. It is now proposed that the President, in consultation with the Governor or Ruler of a State should have the power to issue a general notification in the D Gazette specifying all the Castes and tribes or groups thereof deemed to be Scheduled Castes and Scheduled Tribes for the purposes of the privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a notification has been issued by the President, which, undoubtedly, he will be issuing in consultation with and on the advice of the Government of each State, thereafter, if any elimination was to be made from the List so notified or any addition was to be made, that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President.”

434Copy pinpoint434. The main object of the Constitutional provision was to “eliminate any kind of political factors having a play in the matter of the disturbance in the Scheduled so published by the President.”

435Copy pinpoint435. We have to read the same objective for change of the statutory regime of backward class under 1993 Act into Constitutional regime by Article 342A. To eliminate any kind of political factor to play with regard to list of backward class issued by Government of India from time to time under 1993 Act, the Constitution Amendment was brought as was brought by Constituent Assembly by Draft Article 341 H

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and 342. Now, by virtue of Article 342A, the list once issued by the A President under Article 342A(1) cannot be tinkered with except by way of Parliamentary enactment. Thus, the above was the objective of the Constitutional Amendment and not the taking away the power of the States to identify the Backward Class in State with regard to reservation for employment in the State services and reservation in educational B institution in the States. A laudable objective of keeping away political pressure in amending the list of Backward class issued by President once has been achieved, hence, it cannot be said that the 102 nd Constitutional Amendment was without any purpose if the power of State to identify Backward classes in their State was to remain as it is.

436Copy pinpoint436. The above also sufficiently explain the stand taken by Minister C of Social Justice and Empowerment on the floor of House. The Minister clarified that the Constitutional Amendment is not to take away the power of the State to identify the Backward Classes in the State for purposes of the State and was confined to “Central List” which was being prepared by the Government of India as in earlier regime. Learned Attorney D General in his submission forcefully carried the same stand regarding interpretation of Article 342A. We see no reason to reject the submission of learned Attorney General for India and learned senior counsel appearing for the States that the 102nd Constitutional Amendment was not intended to take away the power of the State regarding identification of Backward Class for services in the State or educational institutions in E the State.

437Copy pinpoint437. We also need to reflect on definition of socially and educationally backward classes as occurring in Article 366(26C). Article 366 is the definition clause of the Constitution. Article 366 begins with the following effect: F

“366. Definition in this Constitution, unless the context otherwise requires, the following expressions have as, the meanings hereby respectively assigned to them, .....” ‘(26C) “socially and educationally backward classes” means G such backward classes as are so deemed under article 342A for the purposes of this Constitution;’.”

438Copy pinpoint438. When we look into the definition as inserted by Article 366(26C), it is clear that definition provides that socially and educationally backward class means such backward classes as are deemed under H

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A Article 342A for the purposes of this Constitution. When we have interpreted Article 342A to mean that Article 342A refers to ‘Central List’ which is prepared for services under the Government of India and organisations under the Government of India, the definition given under Article 366(26C) which specifically refer to Article 342A has to be read together and list of backward classes which is not Central List shall not B be governed by the definition under Article 366(26C). Since, the 26C has been inserted in the context of Article 342A, if the context is list prepared by the State and it is State List, definition under (26C) shall not govern. Article 366(26C), thus, has to be read contextually with Article 342A and for no other purpose.

439Copy pinpoint439. The interpretation which we have put on Article 342A is in full accord with intention of the framers of the Constitution. Dr. B.R. Ambedkar in the Constituent Assembly had said that a backward community is to be determined by each local Government. The determination, i.e., identification of the backward classes was, thus, left D to the local Government as was clearly and categorically stated by Dr. Ambedkar in the Constituent Assembly debates. It is most relevant for the present discussion to quote the exact words used by Dr. Ambedkar while answering the debate on draft sub-clause, Article 10(3) which is Article 16(4) of the present Constitution: E “Somebody asked me: “What is a backward community”? Well, I think anyone who reads the language of the draft itself will find that we have left it to be determined by each local Government. A backward community is a community which is backward in the opinion of the Government.”

440Copy pinpoint440. The framers of the Constitution, thus, had contemplated that determination of backward class as occurring in draft Article 10(3), i.e, present Article 16(4) is to be done by the local Government. The constitutional scheme, thus, was framed in accordance with the above background. After the Constitution, it is for the last 68 years backward class was being identified by the respective State Governments and they G were preparing their respective lists and granting reservation under Articles 15(4) and 16(4) as per their decision. The Constitution Bench of Indra Sawhney did recognise and held that each State Government is fully competent to identify backward classes and this is why the Indra Sawhney directed for appointment of a permanent body both by the Union as well as by the State and consequently Commissions were H

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constituted National Backward Classes Commission and State Backward A Classes Commission. To reverse the entire constitutional scheme regarding identification of backward classes by the State which was continuing in the last 68 years, a clear and explicit Constitutional Amendment, was necessary. There is no express indication in the 102 nd Constitutional Amendment that the power of the State is being taken away for identification of the backward classes.

441Copy pinpoint441. We are not persuaded to interpret Article 342A against the intention of the Parliament which is reflected in the Parliamentary Committee report and the statement made by the Minister on the floor of the House. The statement of the Minister on the floor of the House was clear and categorical, we cannot put an interpretation which was never intended by the Parliament and which may have serious consequences with the rights of the States which neither Parliament intended nor wanted to bring. We, thus, hold that Article 342A was brought by Constitution 102nd Amendment to give constitutional status to National Backward Classes Commission and for publication of list by the President D of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it. The expression ‘Central List’ used in sub-clause (2) of Article 342A has been used for the purpose and object which cannot be ignored nor lost sight. The definition clause under Article 366(26C) has to be read contextually with Article 366(26C) which is E referred under Article 366(2C) itself. Thus, the definition is relevant in the context of ‘Central List’ and the definition is not governing to list prepared by the State which was not under contemplation in Article 342A.

442Copy pinpoint442. We do not find any merit in the challenge to the Constitution F 102nd Amendment. The Constitution 102nd Amendment does not violate any basic feature of the Constitution. The argument of the learned counsel for the petitioner is that Article 368 has not been followed since the Constitution 102nd Amendment was not ratified by the necessary majority of the State. The Parliament never intended to take the rights of the G State regarding identification of backward classes, the Constitution 102nd Amendment was not covered by Proviso to Article 368 sub-clause (2), hence, the same did not require any ratification. The argument of procedural violation in passing the 102nd Constitutional Amendment cannot also be accepted. We uphold the Constitution 102 nd Amendment interpreted in the manner as above. H

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