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

443Copy pinpoint443. The High Court in the impugned judgment has correctly interpreted the Constitution 102nd Amendment and the opinion of the High Court that the Constitution 102nd Amendment does not take away the legislative competence of Maharashtra Legislature is correct and we approve the same. B (15) Conclusions.

444Copy pinpoint444. From our foregoing discussion and finding we arrive at following conclusions: (1) The greatest common measure of agreement in six separate judgments delivered in Indra Sawhney is: C (i) Reservation under Article 16(4) should not exceed 50%. (ii) For exceeding reservation beyond 50%, extra-ordinary circumstances as indicated in paragraph 810 of Justice Jeevan Reddy should exist for which extreme caution is to be exercised. (2) The 50% rule spoken in Balaji and affirmed in Indra Sawhney D is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. 50% is reasonable and it is to attain the object of equality. To change the 50% limit is to have a society which is not founded on equality but based on caste rule. (3) We are of the considered opinion that the cap on percentage of reservation as has been laid down by Constitution Bench in Indra Sawhney is with the object of striking a balance between the rights under Article 15(1) and 15(4) as well as Articles 16(1) and 16(4) . The cap on percentage is to achieve principle of equality and with the object to strike a balance which cannot be said to be arbitrary or unreasonable. (4) Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. The State ought to bring other measures including providing educational facilities to the members of backward class free of cost giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be self-reliant. (5) There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is H

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good and proven to be beneficial in maintaining equality in the A society should also be changed in the name of change alone. (6) When the Constitution Bench in Indra Sawhney held that 50% is upper limit of reservation under Article 16(4), it is the law which is binding under Article 141 and to be implemented. (7) We find that the Constitution Bench judgment in Indra B Sawhney is also fully applicable in reference to Article 15(4) of the Constitution of India. (8) The setting aside of 50% ceiling by eleven-Judge Bench in T.M.A. Pai Foundation case as was laid down by St. Stephen’s case i.e. 50% ceiling in admission in aided Minority Instructions C has no bearing on the principle of 50% ceiling laid down by Indra Sawhney with respect to reservation. The judgment of T.M.A. Pai was in reference to rights of minority under Article 30 and is not relevant for Reservation under Articles 16(4) and 15(4) of the Constitution. D (9) The Constitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% “has now received constitutional recognition”. (10) We fully endorse the submission of Shri Rohtagi that extraordinary situations indicated in paragraph 810 were only E illustrative and cannot be said to be exhaustive. We however do not agree with Mr. Rohtagi that paragraph 810 provided only a geographical test. The use of expression “on being out of the main stream of national life”, is a social test, which also needs to be fulfilled for a case to be covered by exception. F (11) We do not find any substance in any of the 10 grounds urged by Shri Rohatgi and Shri Kapil Sibal for revisiting and referring the judgment of Indra Sawhney to a larger Bench. (12) What was held by the Constitution Bench in Indra Sawhney on the relevance and significance of the principle of stare decisis G clearly binds us. The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this Court. The Constitution Bench judgment of this Court in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration. H

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A (13) The Constitution Bench in M. Nagaraj does not contain any ratio that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to backwardness. The Commission has completely misread the ratio of the judgment, when the Commission took the view that on the quantifiable data ceiling of 50% can be breached. B (14) The Commission and the High Court found existence of the extra-ordinary situations with regard to exceeding 50% ceiling in respect to grant of separate reservation to Maratha because the population of backward class is 80% and reservation limit is only 50%, containing the Maratha in pre-existing reservation for OBC C shall not be justice to them, which circumstances is not covered under the para meters indicated in Indra Sawhney’s case as extra-ordinary circumstance to breach 50% ceiling. (15) We have found that no extraordinary circumstances were made out in granting separate reservation of Maratha Community D by exceeding the 50 per cent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any extra-ordinary circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires. E (16) The proposition is well settled that Commissions’ reports are to be looked into with deference. However, one of the parameter of scrutiny of Commission’s report as approved by this Court is that on the basis of data and materials referred to in the report whether conclusions arrived by the Commission are justified. F (17) The measures taken under Article 15(4) and 16(4) can be examined as to whether they violate any constitutional principle, and are in conformity with the rights under Article 14, 15 and 16 of the Constitution. The scrutiny of measures taken by the State, either executive or legislative, thus, has to pass test of the G constitutional scrutiny. (18) The word ‘adequate’ is a relative term used in relation to representation of different caste and communities in public employment. The objective of Article 16(4) is that backward class should also be put in main stream to enable to share power of the State by affirmative action. To be part of public service, as accepted H

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by the Society of today, is to attain social status and play a role in A governance. (19) We have examined the issues regarding representation of Marathas in State services on the basis of facts and materials compiling by Commission and obtained from States and other sources. The representation of Marathas in public services in B Grade A, B, C and D comes to 33.23%, 29.03%, 37.06% and 36.53% computed from out of the open category filled posts, is adequate and satisfactory representation of Maratha community. One community bagging such number of posts in public services is a matter of pride for the community and its representation in no manner can be said to not adequate in public services. C

(20) The Constitution pre-condition for providing reservation as mandated by Article 16(4) is that the backward class is not adequately represented in the public services. The Commission labored under misconception that unless Maratha community is not represented equivalent to its proportion, it is not adequately D represented. Indra Sawhney has categorically held that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation. E (21) The constitutional precondition as mandated by Article 16(4) being not fulfilled with regard to Maratha class, both the Gaikwad Commission’s report and consequential legislation are unsustainable. (22) We having disapproved the grant of reservation under Article F 16(4) to Maratha community, the said decision becomes relevant and shall certainly have effect on the decision of the Commission holding Maratha to be socially and educationally backward. Sufficient and adequate representation of Maratha community in public services is indicator that they are not socially and educationally backward. G From the facts and figures as noted by Gaikwad Commission in its report regarding representation of Marathas in public services, the percentage of Marathas in admission to Engineering, Medical Colleges and other disciplines, their representation in higher academic posts, we are of the view that conclusion drawn by the H

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A Commission is not supportable from the data collected. The data collected and tabled by the Commission as noted in the report clearly proves that Marathas are not socially and educationally backward class. (23) The elementary principle of interpreting the Constitution or statute is to look into the words used in the statute, when the language is clear, the intention of the Legislature is to be gathered from the language used. The aid to interpretation is resorted to only when there is some ambiguity in words or expression used in the statute. The rule of harmonious construction, the rule of reading of the provisions together as also rule of giving effect to the purpose of the statute, and few other principles of interpretation are called in question when aids to construction are necessary in particular context. (24)The shift from literal rule to purposive and objective interpretation of a constitutional document is adopted since the D Constitution is not to be interpreted in static and rigid manner, the Constitution is an organic and living document which needs to be interpreted with cardinal principals and objectives of the Constitution. The shift from literal to purposive method of interpretation has been now more and more, being adopted for interpreting a constitutional document. E (25) The law is well settled in this county that Parliamentary Committee reports including speech given by the Minister in the Parliament are relevant materials to ascertain the intention of Parliament while construing constitutional provisions. (26) We are of the considered opinion that the consultation by the F 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. Sub-clause (9) of Article 338B uses the expression G ‘consultation’. It is true that the expression ‘consultation’ is not to be read as concurrence but the ‘consultation’ has to be effective and meaningful. The object of consultation is that ‘consultee’ shall place the relevant material before person from whom ‘consultation’ is asked for and advice and opinion given by consulting authority shall guide the authority who has asked for consultation. H

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(27) It is, thus, clear as sun light that Parliamentary intention A discernible from Select Committee report and statement of Minister of Social Justice and Empowerment is that the intention of the Parliament for bringing Constitutional amendment was not to take away the power of the State to identify backward class in the State. B (28) 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. (29) We are of the view that word ‘Central’ in Article 342A (2) C was used for purpose and object. The use of ‘Central’ was only with the intent to limit the list issued by the President to Central services. It is well settled rule of interpretation that no word in a statute or Constitution is used without any purpose. Word ‘Central’ has to be given meaning and purpose. D (30) 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 be governed E 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. (31) We, thus, hold that Article 342A was brought by Constitution F 102 nd Amendment to give constitutional status to National Backward Classes Commission and for publication of list by the President of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it. G (32) The Constitution 102nd Amendment Act, 2018 does not violate any basic feature of the Constitution. We uphold the constitutional validity of Constitution (One Hundred and second Amendment) Act, 2018. H

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A (16) O R D E R In view of the foregoing discussions and conclusions, we decide all the Civil Appeals and Writ Petitions in this batch of cases in following manner: (1) C.A.No.3123 of 2020 and other civil appeals challenging B the impugned judgment of the High Court dated 27.06.2019 are allowed. The impugned judgment of the High Court dated 27.06.2019 is set aside. The writ petitions filed by the appellants in the High Court are allowed with following effect: C (a) Section 2(j) of the Act, 2018 insofar as it declares Maratha community Educationally and Socially Backward Category is held to be ultra vires to the Constitution and struck down. (b) Section 4(1)(a) of Act, 2018 as amended by Act, 2019 D insofar as it grants reservation under Article 15(4) to the extent of 12% of total seats in educational institutions including private institutions whether aided or un-aided by the State, other than minority educational institutions, is declared ultra vires to the E Constitution and struck down. (c) Section 4(1)(b) of Act, 2018 as amended by Act, 2019 granting reservation of 13% to the Maratha community of the total appointments in direct recruitment in public services and posts under the F State, is held to be ultra vires to the Constitution and struck down. (d) That admissions insofar as Postgraduate Medical Courses which were already held not to affect by order dated 09.09.2020, which shall not be affected by this judgment. Hence, those students who have G already been admitted in Postgraduate Medical Courses prior to 09.09.2020 shall be allowed to continue. (e) The admissions in different courses, Medical, Engineering and other streams which were completed H

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after the judgment of the High Court dated 27.06.2019 A till 09.09.2020 are saved. Similarly, all the appointments made to the members of the Maratha community in public services after the judgment of the High Court dated 27.06.2019 till order passed by this Court on 09.09.2020 are saved. However, no further benefit can be claimed by such Maratha students admitted in different course or Maratha students who were appointed in public services in the State under Act, 2018. (f) After the order was passed on 09.09.2020 neither any admission can be taken in the educational institutions nor any appointment can be made in public services and posts in accordance with Act, 2018. (2) The Writ Petition (C)No.914 of 2020, Writ Petition (C)No.915 of 2020, Writ Petition (C)No.504 of 2020 filed under Article 32 of the Constitution are disposed of as per above directions. (3) Writ Petition No.938 of 2020 challenging the Constitutional validity of Constitution 102nd Amendment Act, 2018 is dismissed in view of the interpretation of Constitution 102nd Amendment Act, 2018 as above. E

445Copy pinpoint445. Before we close, we record our indebtedness to learned counsel who appeared in these cases and enlightened us with regard to issues involved in this batch of appeals and writ petitions which are of seminal importance both for constitutional law as well as for the society in general. All the learned counsel apart from oral submissions have F submitted their excellent brief written notes touching various issues which were sought to be canvassed by them before this Court, which rendered valuable assistance to us.

446Copy pinpoint446. Parties shall bear their own costs. G S. RAVINDRA BHAT, J.

1. Franklin D. Roosevelt, the great American leader, once said that “The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.”In these batch of appeals arising from a H

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A common judgment of the Bombay High Court1, this court is called to adjudicate upon the extent to which reservations are permissible by the state, the correctness of its approach in designating a community2 as a “Backward Class” for the purposes of the Constitution, and, by an enactment3 (hereafter referred to as “the SEBC Act”) defining who could benefit from, and the extent of reservations that could be made in B various state established facilities and educational institutions, and in the public services of the State of Maharashtra. A Brief Prelude

2. Dr. Babasaheb Ambedkar, when he spoke on November 25, C 1949, in the Constituent Assembly of India at the time of the adoption of the Constitution, presciently said: “From January 26, 1950, onwards we are going to enter into a life of contradictions. In politics, we will have equality, one man, one vote, one vote and one value. In society and economy, we will still have inequality. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man-one value.”

3. The quest for one person, one value, of true equality, and of fraternity of Indians, where caste, race, gender, and religion are irrelevant, has produced mixed results. As long as there is no true equality, of opportunity, of access, and of the true worth of human beings, and as long as the world is “broken up into fragments by narrow domestic walls”4 the quest remains incomplete. The present judgment is part of an ongoing debate, which every generation of Indians has to grapple with, and this court confront, at different points in time. F

4. The Maratha community, in the State of Maharashtra repeatedly sought reservations through diverse nature of demands through public meetings, marches etc, by members of the community. It also led to representatives and organizations of the community taking the demands 1 In WP No 937/2017; 1208/2019; 2126/2019, PIL No. 175/2018 and con nected batch G of cases. 2 The Maratha community (hereafter “the Marathas”). 3 Maharashtra State Reservation for Seats for Admission in Educational Institutions in the State and for appointments in the public services and posts under the State (for Socially and Educationally Backward Classes) SEBC Act, 2018 i.e., Maharashtra Act No. LXII of 2018 (for short ‘SEBC Act’). 4 H Rabindranath Tagore’s Gitanjali, Verse 35.

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to the streets, resulting in the State of Maharashtra promulgating an A Ordinance for the first time in the year 2014, which granted reservation to the community in public employment and in the field of education. Later, the Ordinance was given the shape of an Act 5, which was challenged before the Bombay High Court.6 The court, after considering the rival submissions, including the arguments of the state stayed the operation of the enactment. The State Government then set up a backward class commission to ascertain the social and educational status of the community. Initially, the commission was headed by Justice S. B. Mhase. His demise led to the appointment of Justice MG Gaikwad (Retired) as chairperson of the commission; it comprised of 10 other members.The Committee headed by Justice Gaikwad was thus reconstituted on 3rd November, 2017. By its report dated 13.11.2018 (the Gaikwad Commission Report)7, the Commission, on the basis of the surveys and studies it commissioned, and the analysis of the data collected during its proceedings, recommended that the Maratha class of citizens be declared as a Socially and Educationally Backward Class (“SEBC” D hereafter). This soon led to the enactment of the SEBC Act, giving effect to the recommendations of the Gaikwad Commission, resulting in reservation to the extent of 16% in favour of that community; consequently, the aggregate reservations exceeded 50%.

5. The SEBC Act was brought into force on 30th November, 2018. Close on its heels a spate of writ petitions was filed before the Bombay E High Court, challenging the identification of Marathas as SEBCs, the conclusions of the Commission, which culminated in its adoption by the State of Maharashtra and enactment of the SEBC Act, the quantum of reservations, and the provisions of the Act itself, on diverse grounds. All writ petitions were clubbed together and considered. By the impugned F judgment, the High Court turned down the challenge and upheld the identification of Marathas as SEBCs, and further upheld the reasons presented before it, that extraordinary circumstances existed, warranting the breach of the 50% mark, which was held to be the outer limit in the nine-judge decision of this court in Indra Sawhney v. Union of India8 (hereafter variously “Indra Sawhney” or “Sawhney”). G

5 Maharashtra Act No. I of 2015. 6 In Writ Petition No. 3151/2014. 7 Report of the Committee, page 10. 8 Indra Sawhney v Union of India 1992 Supp (3) SCC 217. H

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A 6. The special leave petitions, filed against the impugned judgment, were heard, and eventually, leave granted. Some writ petitions too were filed, challenging provisions of the SEBC Act. The validity of the Constitution (102 nd) Amendment Act 9 too is the subject matter of challenge, on the ground that it violates the basic structure, or essential features of the Constitution.10A Bench of three judges, after hearing B counsel for the parties, referred the issues arising from these batch of petitions and appeals, to a Constitution bench, for consideration, as important questions arising for interpretation

7. The five-judge bench, by its order dated 08.03.2021, referred the following points, for decision: C (1) Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.? D (2) Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community E in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case? (3) Whether the State Government on the strength of Maharashtra F State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney? (4) Whether the Constitution One Hundred and Second G Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power? 9 Hereafter referred to as “the 103 rd Amendment”. 10 H Writ petition 938/2020.

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(5) Whether, States’ power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India? (6) Whether Article 342A of the Constitution abrogates States’ power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?

8. I had the benefit of reading the draft judgment of Ashok Bhushan, J. which has exhaustively dealt with each point. I am in agreement with his draft, and the conclusions with respect to Point Nos (1) (2) and (3). C In addition to the reasons in the draft judgment of Ashok Bhushan, J., I am also giving my separate reasons, in respect of Point No. (1). I am however, not in agreement with the reasons and conclusions recorded in respect of Point Nos. (4) and (5), for reasons to be discussed elaborately hereafter. I agree with the conclusions of Ashok Bhushan, J., in respect of Point No (6); however, I have given my separate reasons on this point D too.

9. With these prefatory remarks, I would proceed to discuss my reasons, leading to the conclusions, on both the points of concurrence, as well as disagreement with the draft judgment of Ashok Bhushan, J. E Re Point No. 1: Whether judgment in case of Indra Sawhney v. Union of India,1992 Supp. (3) SCC 217 needs to referred to larger bench of require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.? F

10. A careful reading of the judgments in Indra Sawhney v. Union of India11, clarifies that seven out of nine judges concurred that there exists a quantitative limit on reservation – spelt out @ 50%. In the opinion of four judges, therefore, per the judgment of B.P. Jeevan Reddy, J., this limit could be exceeded under extraordinary circumstances and in conditions for which separate justification has to be forthcoming by G the State or the concerned agency. However, there is unanimity in the conclusion by all seven judges that an outer limit for reservation should be50%. Undoubtedly, the other two judges, Ratnavel Pandian and P.B. Sawant, JJ. indicated that there is no general rule of 50% limit on 11 1992 Supp. (3) SCC 217. H

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A reservation. In these circumstances, given the general common agreement about the existence of an outer limit, i.e. 50%, the petitioner’s argument about the incoherence or uncertainty about the existence of the rule or that there were contrary observations with respect to absence of any ceiling limit in other judgments (the dissenting judgments of K. Subbarao, in T. Devadasan v Union of India12, the judgments of S.M. B Fazal Ali and Krishna Iyer, JJ. in State of Kerala v N.M. Thomas13 and the judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka 14 ) is not an argument compelling a review or reconsideration of Indra Sawhney rule.

11. The respondents had urged that discordant voices in different subjects (Devadasan, N.M. Thomas and Indra Sawhney) should lead to re-examination of the ratio in Indra Sawhney. It would be useful to notice that unanimity in a given bench (termed as a “supermajority”) – denoting a 5-0 unanimous decision in a Constitution Bench cannot be construed as per se a strong or compelling reason to doubt the legitimacy of a larger bench ruling that might contain a narrow majority (say, for instance with a 4-3 vote, resulting in overruling of a previous unanimous precedent). The principle of stare decisis operates both vertically- in the sense that decisions of appellate courts in the superior in vertical hierarchy, bind tribunals and courts lower in the hierarchy, and horizontally- in the sense that a larger bench formation ruling, would be binding and prevail upon the ruling of a smaller bench formation. The logic in this stems from the raison d’etre for the doctrine of precedents, i.e. stability in the law. If this rule were to be departed from and the legitimacy of a subsequent larger bench ruling were to be doubted on the ground that it comprises of either plurality of opinions or a narrow majority as compared with a previous bench ruling (which might be either unanimous or of a larger majority, but of lower bench strength), there would uncertainty and lack of clarity in the realm of precedential certainty. If precedential legitimacy of a larger bench ruling were thus to be doubted, there are no rules to guide the courts’ hierarchy or even later benches of the same court about which is the appropriate reading to be adopted (such as for instance, the number of previous judgments to be considered for determining the majority, and consequently the correct law). 12 1964 (4) SCR 680. 13 1976 (2) SCC 310. 14 1985 SCR Suppl. (1) 352. H

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12. In view of the above reasoning, it is held that the existence of A a plurality of opinions or discordant or dissident judgments in the past – which might even have led to a majority (on an overall headcount) supporting a particular rule in a particular case cannot detract from the legitimacy of a rule enunciated by a later, larger bench, such as the nine- judge ruling in Indra Sawhney. B

13. So far as the argument that Indra Sawhney was concerned only with reservations under Article 16(4) is concerned, this Court is inclined to accept the submissions of the petitioner. The painstaking reasoning in various judgments, in Indra Sawhney, including the judgments of Pandian and Sawant, JJ. would show that almost all the previous precedents on both Article 15(4) and 16(4) were considered 15. C

14. The tenor of all the judgments shows the anxiety of this Court to decisively rule on the subject of reservations under the Constitution – in regard to backward classes and socially and educationally backward classes. This is also evident from the history of Article 15(4) which was noticed and the phraseology adopted (socially and educationally backward classes) which was held to be wider than “backward classes” though the later expression pointed to social backwardness. Such conclusions cannot be brushed aside by sweeping submission pointing to the context of the adjudication in Indra Sawhney.

15. The argument on behalf of the States –that a decision is to be considered as a ratio only as regards the principles decided, having regard to the material facts, in the opinion of this Court, the reliance upon a judgment of this Court in Krishena Kumar and Anr. v. Union of India & Ors.16 in the opinion of this Court is insubstantial. The reference of the dispute, i.e. notification of various backward classes for the purpose of Union public employment under Article 16(4) and the issuance of the OM dated 1990 no doubt provided the context for the Court to decide as it did in Indra Sawhney. However, to characterize its conclusions and the considerations through the judgments of various judges, as not ratios but mere obiter or observations not binding upon the states is an over- 15 M.R. Balaji v. State of Mysore 1963 Supp. 1 SCR 439; P. Rajendran v. State of T.N. G (1968) 2 SCR 786 [Articles 15(4)]; A Peeriakaruppan v. State of T.N. (1971) 1 SCC 38 [Article 15(4)]; State of A.P. v. USV Balram (1972) 1 SCC 660 [Article 15(4)]; T. Devadasan (supra); State of U.P. v. Pradeep Tandon (1975) 1 SCC 267; Janki Prasad Parimoo v. State of J&K (1973) 1 SCC 420; N.M. Thomas [Article 16(4) & K.C. Vasanth Kumar [Article 15(4)]. 16 (1990) 4 SCC 207. H

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A simplification. The OM did lead to widespread protests and discontent. Initially, the writ petitions were referred to a five-judge bench which, upon deliberation and hearing felt that the matter required consideration by a larger bench (presumably in view of the previous ruling by the seven judges in N.M. Thomas where two judges had expressly stated that there was no ceiling on reservation and the later five judge judgment in K.C. Vasanth Kumar where one judge had expressed a similar reservation). It was for the purpose of decisively declaring the law that the nine-judge bench was formed and the question formulated by it. Not only did the judges who constituted a majority speak about this rule; even the two other judges who did not agree with the 50% ceiling rule, dealt with this aspect. This is evident from the judgment of Sawant, J 17: “518. To summarise, the question may be answered thus. There is no legal infirmity in keeping the reservations under Clause (4) alone or under Clause (4) and Clause (1) of Article 16 together, exceeding 50%. However, validity of the extent of excess of reservations over 50% would depend upon the facts and circumstances of each case including the field in which and the grade or level of administration for which the reservation is kept. Although, further, legally and theoretically the excess of reservations over 50% may be justified, it would ordinarily be wise and nothing much would be lost, if the intentions of the framers of the Constitution and the observations of Dr. Ambedkar, on the subject in particular, are kept in mind. The reservations should further be kept category and gradewise at appropriate percentages and for practical purposes the extent of reservations should be calculated category and gradewise..”

16. Likewise, Pandian, J., after elaborate discussion,18 recorded his conclusions in this manner: “189. I fully share the above views of Fazal Ali, Krishna Iyer, Chinnappa Reddy, JJ holding that no maximum percentage of reservation can be justifiably fixed under Articles 15(4) and/or 16(4) of the Constitution.” 17 At page 552, SCC Report. 18 In paras 177-178 at page 407-413 and the conclusions in para 189 at page 413 in Indra Sawhney (supra). H

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17. Both show that the extent of whether a 50% limit is applicable, A was considered by all the judges. Therefore, the arguments on behalf of the States and the contesting respondents in this regard are unmerited. Likewise, to say that whether a 50% limit of reservation existed or not was not an issue or a point of reference, is without basis; clearly that issue did engage the anxious consideration of the court. B

18. The States had argued that providing a ceiling (of 50%) amounts to restricting the scope of Part III and Part IV of the Constitution. A provision of the constitution cannot be “read down” as to curtail its width, or shackle state power, which is dynamic. The state legislatures and executives are a product of contemporary democratic processes. They not only are alive to the needs of the society, but are rightfully entitled to frame policies for the people. Given the absence of any caste census, but admitted growth of population, there can be no doubt that the proportion of the backward classes has swelled, calling for greater protection under Articles 15 (4) and 16 (4). Also, every generation has aspirations, which democratically elected governments are bound to meet and consider, while framing policies. In view of these factors, the fixed limit of 50% on reservations, requires to be reconsidered. Counsel submitted that whether reservations in a given case are unreasonable and excessive, can always be considered in judicial review, having regard to the circumstances of the particular case, the needs of the state and by weighing the rights, in the context of the states’ priorities, having regard to their obligations under the Directive Principles of State Policy, which are now deemed as fundamental as the rights under Part III of the Constitution. The court’s flexibility in testing whether a measure is reasonable or not can always be retained and moulded appropriately.

19. Lt. Col Khajoor Singh v. Union of India (supra) is an authority for the approach that this court should adopt, when it is asked to reconsider a previous precedent of long standing. The court observed that: “We are of opinion that unless there are clear and compelling reasons, which cannot be denied, we should not depart from the interpretation given in these two cases and indeed from any interpretation given in an earlier judgment of this Court, unless there is a fair amount of unanimity that the earlier decisions are manifestly wrong. This Court should not, except when it is demonstrated beyond all reasonable doubt that its H

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A previous ruling, given after due deliberation and full hearing, was erroneous, go back upon its previous ruling, particularly on a constitutional issue.”

20. In Keshav Mills (supra) the court elaborated what considerations would weigh with it, when a demand for review of the law declared in a previous judgment is made: “..Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. …it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations: What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is E the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public F inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions.”

21. Identical observations were made in Jindal Stainless (supra). G In Union of India v Raghubir Singh19, a Constitution Bench articulated the challenges often faced by this court: “….The social forces which demand attention in the cauldron of change from which a new society is emerging appear to 19 H 1989 (3) SCR 316.

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call for new perceptions and new perspectives…..The A acceptance of this principle ensured the preservation and legitimation provided to the doctrine of binding precedent, and therefore, certainty and finality in the law, while permitting necessary scope for judicial creativity and adaptability of the law to the changing demands of society. The question then B is not whether the Supreme Court is bound by its own previous decisions. It is not. The question is under what circumstances and within what limits and in what manner should the highest Court over-turn its own pronouncements.”

22. What the respondents seek, in asking this court to refer the issue to a larger bench, strikes at the very essence of equality. The C review of precedents undertaken by Indra Sawhney not only spanned four turbulent decades, which saw several amendments to the Constitution, but led to a debate initiated by five judges in M.R. Balaji, (and followed up in at least more than 10 decisions) later continued by seven judges in N.M. Thomas. This debate- i.e., between Balaji and D Indra Sawhney, saw the court’s initial declaration that a 50% ceiling on reservations should be imposed, which was questioned in three judgments, though not in majority decisions of various benches. Therefore, to decisively settle this important issue- among other issues, the nine- judge bench was constituted. Indra Sawhney decisively ruled that reservations through special provisions should not exceed 50% by a 7-2 E majority. Two judges did not indicate any limit on reservations, they did not also indicate any clear guiding principle about what should be the court’s approach, when a party complains that reservations are excessive or unreasonable. Indra Sawhney is equally decisive on whether reservations can be introduced for any new class, or the quantum of reservations, when introduced, or changed, can be the subject matter of judicial review, for which according to the majority of judges, the guiding principle would be the one enunciated in Barium Chemicals v. Company Law Board 20.

23. The salience of the issue under consideration is that equality has many dimensions. In the context of Articles 15 (4) and 16 (4,) and indeed the power of classification vested in the state, to adopt protective 20 1966 (Suppl.) 3 S.C.R. 311, to the effect that where a statutory power can be exercised through the subjective satisfaction of any authority or the state, it should be based on objective materials, and on relevant considerations, eschewing extraneous factors and considerations. H

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A discrimination policies, there is an element of obligation, or a duty, to equalize those sections of the population who were hitherto, “invisible” or did not matter. The reach of the equalizing principle, in that sense is compelling. Thus while, as explained by this court in Mukesh Kumar v. State of Uttarakhand 21 there is no right to claim a direction that reservations should be provided (the direction in that case being sought B was reservation in promotions in the state of Uttarakhand), the court would intervene if the state acts without due justification, but not to the extent of directing reservations.22 Equally, the states’ obligation to ensure that measures to uplift the educational and employment opportunities of all sections, especially vulnerable sections such as scheduled castes and C STs and backward class of citizens, is underscored- not only in Article 15 (4) but also by Article 46, though it is a directive principle.23 It is wrong therefore, to suggest that Indra Sawhney did not examine the states’ obligations in the light of Directive Principles; it clearly did- as is evident from the express discussion on that aspect in several judgments.24

D 24. Protective discrimination, affirmative action, or any other term used by this court, means the measure of the state to ensure that past inequities are not carried on as today’s burdens, that full (and one may add, meaningful) opportunities are given to all in participation in 21 (2020) 3 SCC 1. 22 As this court did, in P & T Scheduled Caste/Tribe Employee Welfare Association vs E Union of India & Ors. 1988 SCR Suppl. (2) 623, when, upon withdrawal of a government order resulted in denial of reservation in promotion, hitherto enjoyed by the employees. The court held: “While it may be true that no writ can be issued ordinarily competing the Government to make reservation under Article 16 (4) which PG NO 630 is only an enabling clause, the circumstances in which the members belonging to the Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs F Department are deprived of indirectly the advantage of such reservation which they were enjoying earlier while others who are similarly situated in the other departments are allowed to enjoy it make the action of Government discriminatory and invite intervention by this Court.” 23 “46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in G particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.” 24 There is discussion about the states’ obligations, in the context of reservations, in the judgments of Pandian (paras 173,194); Dr. Thommen, J (Para 297); Kuldip Singh, J (para 387); P.B. Sawant, J (paras 416-418, 433-34, 479-451); R.M. Sahai, J (Para 593) and B.P. Jeevan Reddy, for himself, Kania, CJ, M.N. Venkatachalaiah and A.M. Ahmadi, H JJ (in Paras 648-49, 695, 747, Paras 834-835 and Para 860- all SCC references).

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governance structures: access to public institutions (through special provisions under Article 15 (4)) and adequate representation (through reservations under Article 16 (4)). They are tools in the repertoire of the states to empower those hitherto barred from sharing power- and all that went with it, of bringing first hand perspectives in policy making, of acting as pathbreakers, of those breaking the glass ceiling- in short, imparting dimensions in democratic governance which were absent. 25

25. A constant and recurring theme in the several judgments of Indra Sawhney was the concept of balance. This expression was used in two senses- one, to correct the existing imbalance which existed, due to past discriminatory practices that kept large sections of the society backward; two, the quest for achieving the balance between the guarantee of equality to all, and the positive or affirmative discrimination sanctioned by Article 15 (4) and 16 (4).26 B.P. Jeevan Reddy, J (for himself and four other judges) held that (para 808, SCC reports): “It needs no emphasis to say that the principal aim of Articles 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision — though not an exception to clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the re- statements of the principle of equality enshrined in Article E

14. The provision under Article 16(4) — conceived in the interest of certain sections of society — should be balanced against the guarantee of equality enshrined in clause (1) of 25 The idea of empowerment is articulated in the judgment of Jeevan Reddy, in Indra Sawhney firstly in Para 694: “The above material makes it amply clear that the objective behind clause (4) of Article 16 was the sharing of State power. The State power which was almost exclusively monopolised by the upper castes i.e., a few communities, was now sought to be made broad-based. The backward communities who were till then kept out of apparatus of power, were sought to be inducted thereinto and since that was not practicable in the normal course, a special provision was made to effectuate the said objective. In short, the objective behind Article 16(4) is empowerment of the deprived backward communities — to give them a share in the administrative apparatus and in the governance of the community. “and then, in Para 788. that “the object of Article 16(4) was “empowerment” of the backward classes. The idea was to enable them to share the state power.” 26 This theme of balance occurs 49 times in various judgments. All the judges deal with it; although Pandian and Sawant, JJ, reject the numerical ceiling of 50%, their judgments acknowledge the need to maintain the balance between the main parts of Articles 15 and 16, while ensuring that past discrimination is remedied. H

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A Article 16 which is a guarantee held out to every citizen and to the entire society.”

26. There is more discussion on this subject by the same judgment.27 Dr. Thommen, J, expressed that reservations should not be an end all, and should not be perpetuated, beyond the objectives they B were designed to achieve and that “A balance has to be maintained between the competing values and the rival claims and interests so as to achieve equality and freedom for all.” (Ref. Para 255, SCC reports). R.M. Sahai, J, expressed the idea in these terms (Ref. Para 560, SCC reports): C “Any State action whether ‘affirmative’ or ‘benign’, ‘protective’ or ‘competing’ is constitutionally restricted first by operation of Article 16(4) and then by interplay of Articles 16(4) and 16(1). State has been empowered to invade the constitutional guarantee of ‘all’ citizens under Article 16(1) in favour of ‘any’ backward class of citizens only if in the opinion of the government it is inadequately represented. Objective being to remove disparity and enable the unfortunate ones in the society to share the services to secure equality in, ‘opportunity and status’ any State action must be founded on firm evidence of clear and legitimate identification of such backward class and their inadequate representation. Absence of either renders the action suspect. Both must exist in fact to enable State to assume jurisdiction to enable it to take remedial measures….States’ latitude is further narrowed when on existence of the two primary, basic or jurisdictional facts it proceeds to make reservation as the wisdom and legality of it has to be weighed in the balance of equality pledged and guaranteed to every citizen and tested on the anvil of reasonableness to “smoke out” any illegitimate use and restrict the State from crossing the clear constitutional limits.”

G 27. Constitutional adjudication involves making choices, which necessarily means that lines have to be drawn, and at times re-drawn- depending on “the cauldron of change”28. It has been remarked that decisions dealing with fundamental concepts such as the equality clause 27 Paras 614 and 814, SCC reports. 28 H A phrase used in Raghubir Singh (supra).

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are “heavily value-laden, and necessarily so, since value premises A (other than the values of “equality” and “rationality”) are necessary to the determination that the clause requires.”29

28. Interpretation of the Constitution, is in the light of its uniqueness, Dr. Aharon Barak, the distinguished former President of the Israeli Supreme Court remarked, in his work:30 B “Some argue that giving a modern meaning to the language of the constitution is inconsistent with regarding the constitution as a source of protection of the individual from society 31 . Under this approach, if the constitution is interpreted in accordance with modern views, it will reflect the view of the majority to the detriment of the minority. My reply to this claim is inter alia, that a modern conception of human rights is not simply the current majority’s conception of human rights. The objective purpose refers to fundamental values that reflect the deeply held beliefs of modern society, not passing trends. These beliefs are not the results of public opinion polls or mere populism; they are fundamental beliefs that have passed the test of time, changing their form but not their substance.”

29. As the organ entrusted with the task of interpreting the laws and the Constitution, the word of this court is final. Undoubtedly its role is as a co-equal branch of governance; nevertheless, its duty to interpret the law and say what its silences (or ambiguities) denote, in the particular contexts that it has to contend with, involve making choices. These choices are not made randomly, or arbitrarily32, but based on a careful analysis of the rights involved, the remedies proposed by the legislative or executive measure, the extent of limits imposed by the Constitution, and so on. The history of the legislation or the measure, or indeed the provision of the Constitution plays a role in this process. Interpretation involves an 29 Legislative Purpose, Rationality, and Equal Protection, 82 YALE L.J. 123 (1972). Cf. C. PERELMAN, THE IDEA OF JUSTICE AND THE PROBLEM OF ARGUMENT 1-60 (1963). G 30 Aharon Barak, The Judge in a Democracy, p.132. 31 See generally Antonin Scalia, “Originalism: The Lesser Evil, “57 U. Cin. L. Rev. 849, 862-863 (1989). 32 Michael Kirby, Indian and Australian Constitutional Law: A Recent Study in Contrasts’, 60 JILI (2018) 1, p. 30; Also see Herbert Weschler, ‘Towards Neutral Principles of Constitutional Law’, (1959) 73 Harv. L. Rev. 1. H

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A element of line drawing, of making choices. This court’s decisions are replete with such instances. The doctrine of classification is the first instance where this court drew a line, and indicated a choice of interpretation of Article 14; likewise, right from In re Kerala Education Bill33 to T.M.A Pai Foundation v. State of Karnataka,34 a textually absolute fundamental right, i.e. Article 30 has been interpreted not to B prevent regulation for maintenance of educational standards, and legislation to prevent mal-administration. Yet, whenever a choice is made in the interpretation of a provision of this constitution, and a limit indicated by a decision, it is on the basis of principle and principle alone.

30. As noticed previously, the search of this court, in Indra C Sawhney – after an exhaustive review of all previous precedents, was to indicate an enduring principle for application by courts, that would strike the just balance between the aspirational rights – and the corresponding duty of the states to introduce affirmative measures to combat inequality (under Articles 15 [4] and 16 [4]) on the one hand, D and the principle of equality and its command against practising inequality in proscribed areas (caste being one, in both Articles 15 and 16). It was suggested during the hearing that the quantitative criteria (50% limit on reservation) is too restrictive leaving no breathing room for democratically elected governments. This court remarked in R.C. Poudyal v. Union of India35 that E “124. … In the interpretation of a constitutional document, “words are but the framework of concepts and concepts may change more than words themselves”. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the F meaning of the words without an acceptance of the line of their growth. It is aptly said that “the intention of a Constitution is rather to outline principles than to engrave details”.”

31. The idea of a definitive and objective principle, in the form of a 50% ceiling on limitation, emerges on an overall reading of Indra G Sawhney. The argument made by the respondents was that this court should not go by such a ceiling limit, but rather, while exercising its judicial review power, proceed on a case-by-case approach, and resting its 33 1959 SCR 995. 34 2002 (8) SCC 481. 35 H 1994 Supp (1) SCC 324.

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conclusions on fact dependent exercises, using other criteria, such as reasonableness, proportionality, etc. for judging excessive reservations. However, what constitutes reasonableness and what is proportionate in a given case, would be unchartered and indeterminate areas. It is one thing to try persuading the court to discard a known principle, in the light of its loss of relevance, yet for that argument to prevail, not only should the harm caused by the existing principle be proved, but also a principle that is sought to be substituted, should have clarity, or else, the argument would be one asking the court to take a leap in the dark. It is not enough, therefore to resort to observations such as “the length of the leap to be provided depends upon the gap to be covered” 36 or the proportionality doctrine (deployed to judge validity of an executive or legislative measure), because they reveal no discernible principle. Reasonableness is no doubt a familiar phrase in the constitutional lexicon; yet there is considerable subjectivity and relativity in its practise. Again, to quote Dr. Barak there are “zones of reasonableness”37. This places the court in a difficult situation, where the state’s choices require greater deference, and a corresponding narrowing of judicial review, given that the standard of review is the one indicated in Barium Chemicals. The South African Constitutional Court voiced a similar idea, in connection with an affirmative action program, when it observed that: “The fairness of a measure differentiating on any prohibited ground depends not only on its purpose, but on the cumulative effect of all relevant factors, including the extent of its detrimental effects on non-designated groups”.38

32. In another case, City Council of Pretoria v. Walker,39 Sachs J. (of the South African Constitutional Court)remarked that: F “[p]rocesses of differential treatment which have the legitimate purpose of bringing about real equality should not be undertaken in a manner which gratuitously and insensitively offends and marginalises persons identified as belonging to groups who previously enjoyed advantage.” G

33. In that case, the question for judicial review was whether a local authority in a period of transition, could impose a lower flat rate 36 State of Punjab v. Hiralal, 1971 (3) SCR 267. 37 The Judge in a Democracy, Aharon Barak at p. 248. 38 Harksen v. Lane 1997 (11) BCLR 1489 (CC) at 1511C. 39 1998 (3) BCLR 257 (CC) at para. 123. H

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A tariff in one locality (inhabited by the historically discriminated black community, with poor infrastructure) and a higher metered tariff in a locality with better infrastructure, inhabited by the white community. Sachs J. held that this was not unfair discrimination against the applicant, a white resident, but rather a failure on the part of the local authority to put down a basis for the differential levy of tariffs, rooted in substantive equality: “Yet, any form of systematic deviation from the principle of equal and impartial application of the law (as was the practice in the present case for a certain period), might well have to be expressed in a law of general application which would be justiciable according to the criteria of reasonableness and justifiability”.

34. Upon examination of the issue from this perspective, the ceiling of 50% with the “extraordinary circumstances” exception, is the just balance- what is termed as the “Goldilocks solution”40 - i.e. the solution containing the right balance that allows the state sufficient latitude to ensure meaningful affirmative action, to those who deserve it, and at the same time ensures that the essential content of equality, and its injunction not to discriminate on the various proscribed grounds (caste, religion, sex, place of residence) is retained. This court in M. Nagaraj v. Union E of India 41observed that “a numerical benchmark is the surest immunity against charges of discrimination.” To dilute the 50% benchmark further, would be to effectively destroy the guarantee of equality, especially the right not to be discriminated against on the grounds of caste (under Articles 15 and 16).

F 35. In view of all these reasons, the argument that Indra Sawhney requires reconsideration, and ought to be referred to a larger bench, is hereby rejected. Affirmative Action and the Reservation Paradigm Special Provisions G 40 “Having or producing the optimal balance between two extremes” The Merriman Webster Dictionary https://www.merriam-webster.com/dictionary/Goldilocks. The term was used by Justice Elena Kagan in her dissent, in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. 721 (2011)“the difficulty then, is finding the Goldilocks solution-not too large, not too small, but just right.”This term is also used to denote a proper balance, in management parlance. 41 H (2006) 8 SCC 212.

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36. Before parting with this section, this opinion would dwell upon A affirmative action, and possibilities under the Constitution, from a larger perspective. Most debates, and precedents in the country have centred round the extent of reservation and administration of quotas (reservations) under Articles 15 (4) and 16(4). The term “special provision” in Article 15 (4) is of wider import, than reservations. Unlike the United States of B America which – in the absence of a provision enabling such special provisions, and which has witnessed a turbulent affirmative action policy jurisprudence, the 1960s and 1970s witnessing the framing of policies and legislation, and the subsequent narrowing of minority and racial criteria, to support affirmative action, our Constitution has a specific provision.

37. During the hearing, it was pointed out that there are not enough opportunities for education of backward classes of citizens, and that schools and educational institutions are lacking. It was argued by the states that sufficient number of backward classes of young adults are unable to secure admissions in institutions of higher learning.

38. It would be, in this context, relevant to notice that two important amendments to the Constitution of India, which have the effect of transforming the notion of equality, were made in the last 15 years. The first was the eighty sixth amendment – which inserted Article 21A42- which had the effect of enjoining the state to provide free and compulsory education to all children in the age group 6-14. The second was the E Constitution Ninety Third Amendment Act, which inserted Article 15 (5)43 enabling the state to make special provisions “for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided.” The transformative potential of these provisions (both of which 42 “21A. Right to education. — The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.” 43 “15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth..[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.” H

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A have been upheld by this court – in Pramati Educational & Cultural Trust v. Union of India 44) is yet to be fully realized. Article 21A guarantees minimum universal education; whereas Article 15(5) enables access to backward classes of citizens admissions, through special provisions by the state, in private educational institutions. The Right to Education Act, 2009 provides a broad statutory framework for realization of Article 21A.

39. The availability of these constitutional provisions, however does not mean that those belonging to backward class of citizens would be better off or would reap any automatic benefits. Here, it is relevant to consider that often, any debate as to the efficacy or extent of reservation, invariably turns to one stereotypical argument- of merit. Long ago, in his important work45– Marc Galanter had dealt with the issue of merit in this manner: “Let us take merit to mean performance on tests (examinations, interview, character references or whatever) thought to be related to performance relevant to the position (or other opportunity) in question and commonly used as a measure of qualification for that position. (In every case it is an empirical question whether the test performance is actually a good predictor of performance in the position, much less of subsequent positions for which it is a preparation.) E Performance on these tests is presumably a composite of native ability, situational advantages (stimulation in the family setting, good schools, sufficient wealth to avoid malnutrition or exhausting work, etc.), and individual effort. The latter may be regarded as evidence of moral desert, but neither native ability nor situational advantages would seem to be. The F common forms of selection by merit do not purport to measure the moral desert dimension of performance. Unless one is willing to assume that such virtue is directly proportionate to the total performance, the argument for merit selection cannot rest on the moral deservingness of individual candidates…..”

G 40. In his judgment, (in Indra Sawhney) Sawant, J. too spoke of this phenomenon: “405. The inequalities in Indian society are born in homes and sustained through every medium of social advancement. 44 2014 (8) SCC 1. 45 H Marc Galanter, Competing Equalities – Law and the Backward Classes in India.

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Inhuman habitations, limited and crippling social intercourse, low-grade educational institutions and degrading occupations perpetuate the inequities in myriad ways. Those who are fortunate to make their escape from these all-pervasive dragnets by managing to attain at least the minimum of attainments in spite of the paralysing effects of the debilitating social environment, have to compete with others to cross the threshold of their backwardness. Are not those attainments, however low by the traditional standards of measuring them, in the circumstances in which they are gained, more creditable? Do they not show sufficient grit and determination, intelligence, diligence, potentiality and inclination towards learning and scholarship? Is it fair to compare these attainments with those of one who had all the advantages of decent accommodation with all the comforts and facilities, enlightened and affluent family and social life, and high quality education? Can the advantages gained on account of the superior social circumstances be put in the scales to claim merit and flaunted as fundamental rights? May be in many cases, those coming from the high classes have not utilised their advantages fully and their score, though compared with others, is high, is in fact not so when evaluated against the backdrop of their superior advantages - may even be lower…..

406. Those who advance merit contention, unfortunately, also ignore the very basic fact - (though in other contexts, they may be the first to accept it) - that the traditional method of evaluating merit is neither scientific nor realistic. Marks in one-time oral or written test do not necessarily prove the worth or suitability of an individual to a particular post, much less do they indicate his comparative calibre. What is more, for different posts, different tests have to be applied to judge the suitability. The basic problems of this country are mass- oriented. India lives in villages, and in slums in towns and cities. To tackle their problems and to implement measures to better their lot, the country needs personnel who have firsthand knowledge of their problems and have personal interest in solving them. What is needed is empathy and not mere sympathy. One of the major reasons why during all these H

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A years after Independence, the lot of the downtrodden has not even been marginally improved and why majority of the schemes for their welfare have remained on paper, is perceptibly traceable to the fact that the implementing machinery dominated as it is by the high classes, is indifferent to their problems….” B There were observations earlier in the judgment of Chinnappa Reddy, J, in K.C. Vasant Kumar (supra). Anatole France had – in his ironic (and iconic) observations remarked once, that C “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”

41. The previous rulings in Vasant Kumar (supra), and the comments of Dr. Amartya Sen in his work “Merit and Justice” were considered in some detail, in the recent ruling in B.K. Pavitra v. Union of India46, ““Merit” must not be limited to narrow and inflexible criteria such as one’s rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration.” This court also noted that merit as we understand - i.e. performance in standardised tests, is largely dependent upon neutral factors, which discriminate in favour of those who are privileged. F

42. The argument of merit thus ignores the inherent and situational inequity between those who have no access to the means of achieving the goal of meaningful education, i.e. to colleges and professional institutions, based on competitive evaluations like tests, and those who have all the wherewithal for it. Those from low-income groups cannot G join coaching programmes, which hone candidates’ skills in succeeding in an entrance test.

43. Overemphasis on merit therefore, ignores the burdens of the past, assumes that everything is perfectly fair now and asks the question 46 H (2019) 16 SCC 129.

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of how the candidate fares in examinations that test only a narrow range of skills, mainly of linear-type thought. This decontextualized, neutrality- based thinking glosses over historical and centuries old inequalities, the burdens of which continue to plague those who labour under disadvantage, and through the so called “level playing field” of a common exam, or evaluation, privileges those who had, and continue to have, access to wealth, power, premium education and other privileges, thus consolidating these advantages. Merit is a resource attractor. Those with it, accumulate more of it, more wealth and acquire more power. They use that money and power to purchase more increments of merit for themselves and their children. C

44. The eminent legal thinker, Michael Sandel, in his Tyranny of Merit, bemoans that the US has now become a sorting machine”that promises mobility on the basis of merit but entrenches privilege and promotes attitudes toward success corrosive of the commonality democracy requires” (p. 155)He further says that first, all are told that although the promise of a mobile society based on merit is better than a D hereditary hierarchy, it is important to comprehend that this promise does not come with any attendant promise to attenuate inequality in society. On the contrary, this promise legitimizes “inequalities that arise from merit rather than birth” (p. 161).Second, we learn that a system that rewards the most talented is likely to undervalue the rest, either explicitly or implicitly.

45. The context of these observations is to highlight that even when reservations are provided in education, sufficient numbers of the targeted students may not be able to achieve the goal of admission, because of the nature of the entrance criteria. Equality of opportunity then, to be real and meaningful, should imply that the necessary elements to create those conditions, should also be provided for. It would therefore be useful to examine – only by way of illustration- the schemes that exist, for advancing educational opportunities, to Scheduled Caste (“SC” hereafter)/ Scheduled Tribe (“ST” hereafter) and SEBC students. G

46. Central government scholarships are available to students from SC communities, for studies in Class IX and X, conditional to income of parents/ guardians being less than ` 2,50,000 per annum. Eligible students must also not be covered by any other central government scholarships or funding, but may be eligible for the National Means-cum-Merit H

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A Scholarship Scheme.47 Under the pre matric scholarship scheme, day scholars are provided with ` 225 per month for a period of ten months, with a books and ad hoc grant, at ` 750 p.a. Hostellers receive ` 525 per month, for a period of ten months, with a similar grant at ` 1000 p.a. For 2020-21 a total amount of ` 750 crores was allocated, of which ` 404.93 crores was released. The previous years, from 2015-16 to 2019-20, the B total allocated budget was ` 1,922 crores, of which ` 1,561.90 crores was released to 121.85 lakh beneficiaries.48

47. Pre-matric scholarships are provided for students of Class I to X, whose parents are manual scavengers, tanners and flyers, waste- pickers, or persons engaged in hazardous cleaning, as defined under the C Manual Scavengers Act, 2013.49 Hostellers are provided ` 700 per month, while day scholars, ` 225 per month through the academic year (ten months). Grants of ` 750 and ` 1000 p.a. are available to day-scholars and hostellers respectively. Here too, selected candidates are excluded from all other scholarships.

D 48. At the post matric level, the Central Sector Scholarship Scheme of Top Class for SC Students, makes scholarships available to SC students who have secured admission at IIMs, IITs, AIIMS, NITs, NLUs, other central government institutions, institutions of national importance, etc.50 The scholarship covers tuition fee (capped at ` 2 lakhs per annum for E private institutions), living expenses at ` 2220 per month, allowance for books and stationery, and a computer and accessories (capped at ` 45,000, as one time assistance). Eligibility criteria require total family income from all sources to be less than ` 8,00,000 per annum. Under this scheme, in 2020-21, the total budget allocation was ` 40 crores; of this, as on 47 Scheme List, Ministry of Social Justice and Empowerment, available at http:// F socialjustice.nic.in/SchemeList/Send/23?mid=24541 (Last accessed on 21.04.2021). See also, Notification dated 06.09.2019, ‘Funding pattern for Pre-Matric Scholarship Scheme for SC Students studying in Class 9 th and 10 th for the year 2019-20’, available at http:/ /socialjustice.nic.in/writereaddata/UploadFile/Scm_guidelines_06092019.pdf (Last accessed on 21.04.2021). 48 Annual Report, 2020-2021, Department of Social Justice & Empowerment, Ministry of Social Justice and Empowerment, p.50, available at http://socialjustice.nic.in/ G writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG. pdf, (Last accessed on 23.04.2021). 49 Ministry of Social Justice and Empowerment, Notification dated 2.04.2018, available at http://socialjustice.nic.in/writereaddata/UploadFile/Pre-Matric_Scholarship_haz.pdf (Last accessed on 21.04.2021). 50 Scheme List, Ministry of Social Justice and Empowerment, availableat http:// H socialjustice.nic.in/SchemeList/Send/27?mid=24541 (Last accessed on 21.04.2021).

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31.12.2020 ` 24.03 crores were spent on 1550 beneficiaries.51 For the previous years, i.e. 2016-17 to 2019-2020, the total allocated budget was ` 131.50 crores, with a total expenditure of ` 127.62 crores, on 6676 beneficiaries.52

49. Similar pre-matric and post-matric scholarships are also available to ST students. At the state level too, various such scholarship schemes are made available to SC and ST students, and students belonging to minority communities and backward classes. 53 Similar pre- matric and post-matric scholarships are also available to ST students. At the state level too, various such scholarship schemes are made available to SC and ST students, and students belonging to minority communities and backward classes.54 In respect of the post-matric scholarship for C ST students, for the financial year 2020-21, an amount of ` 1833 crores was budgeted, out of which ` 1829.08 crore was released.55 For the pre-matric scholarship for ST students, for the financial year 2020-21, an amount of ` 250 crores was budgeted, out of which ` 248.9 crores were released. D

50. Under the Central Scholarship Scheme of Top-Class for ST students, in the year 2020-2021, a total budget of ` 29.31 Crores was allocated, out of which ` 20 Crore was disbursed among 2449 (1973 male and 512 female) beneficiaries.56 In the year 2019-2020, a total budget of ` 20 Crores was allocated, with disbursement of ` 19.1 Crores to 1914 beneficiaries.57 The State of Telangana had the highest number E of beneficiaries, at 988, followed by Rajasthan at 363 and Andhra Pradesh at 147. The States of Chattisgarh and Madhya Pradesh had 69 and 49 beneficiaries respectively.58

51 Annual Report, 2020-2021, pg. 68, Department of Social Justice & Empowerment, F Ministry of Social Justice and Empowerment, available athttp://socialjustice.nic.in/ writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf , (Last accessed on 23.04.2021) 52 Ibid 53 See generally, https://pib.gov.in/PressReleaseP age.aspx?PRID=1593767 (Last accessed on 21.04.2021). 54 See generally, https://pib.gov.in/PressReleasePage.aspx?PRID=1593767(Last accessed G on 21.04.2021). 55 Post-Matric Scholarship, Ministry of Tribal Affairs, data available at https://dashboard.tribal.gov.in/(Last accessed on 23.04.2021). 56 Ibid. 57 Ibid. 58 Ibid. H

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A 51. Under the National Fellowship Scheme for ST students (at higher levels of education such as Ph.D., M.Phil), an amount of ` 90.78 Cr was disbursed to 2525 fellowship scholars. 59 Under the National Overseas Scholarship for ST students, for post-graduate study abroad, in the year 2020-21, an amount of ` 4.76 crore was disbursed to 30 beneficiaries.60 B

52. In respect of Other Backward Classes (OBCs), central government pre-matric and post-matric (Class 11-12th and above) are available, for students whose parents’/guardian’s income from all sources does not exceed ` 2.5 lakhs. Under the pre-matric scholarship, ` 100/- per month for 10 months is given to day scholars and ` 500/- per month C for 10 months is given to hostellers. For the year 2020-2021 (as on 31.12.2020) a total budget of ` 175 crore was allocated, out of which ` 118.09 crore was provided to 200 lakh beneficiaries. In the previous years, from 2015-16 to 2019-20, a total of ` 759.9 crore was allocated, out of which ` 701.42 Crores was released to 463.08 lakh beneficiaries.61

D 53. Under the post-matric scholarship for OBCs, for the year 2020-2021, a total budget of ` 1100 crore was allocated, out of which, ` 802.27 crores were provided to 80 lakh beneficiaries. In the previous years, from 2015-16 to 2019-20, a total budget of ` 5,035.75 crore was allocated, out of which ` 4,827.89 crore was released for 207.96 lakh beneficiaries.62

54. A national fellowship is also available to OBC students at the degree levels of M.Phil and Ph.D. Fellowships are awarded to research students, at ` 31,000 per month for junior research fellows and at ` 35,000 per month for senior research fellows. Under this fellowship, for the year 2020-21, a budget of ` 45 crore was allocated, out of which ` 18 crore is expected to be provided to 2900 anticipated beneficiaries. In the previous years, from 2016-17 to 2019-20, ` 149.5 crore was allocated, out of which approx. ` 154 crore was provided to 7,200 beneficiaries (5,100 provisional).63 59 Ibid. G 60 Ibid. 61 Annual Report, 2020-2021, Department of Social Justice & Empowerment, Ministry of Social Justice and Empowerment, p. 104-105, available at http://socialjustice.nic.in/ writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf(Last accessed on 23.04.2021). 62 Ibid., at p. 105. 63 H Ibid., at p. 107-108.

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55. A report of the NITI Aayog64, based on data from the 2001 A Census, analysed that the gap between literacy rates of the general population and that of the SC population had not reduced over the years. The rate of school drop-outs was seen as a crucial indicator of lack of educational development. The dropout rates for SC children were seen to be very high – 32.7% in Classes I to V; 55.2% in Classes I to VIII; B and 69.1% in classes I to X in 2004–05. The gap between the SC population and the general category was seen to increase at higher levels of schooling. Data on dropout rates for ST students in the year 2006-07 shows that the primary level (Class I-V), 33.2% ST students drop out. At the elementary level (Class I – VIII), this increases to 62.5%, while at the secondary level (Class I- X), the drop-out rate is 78.7%.65 For the C same time frame, the drop out rates for SC students at the primary level was 36%; at the elementary level, 53.1%; and at the secondary level, 69%.66According to the Annual Report (Periodic Labour Force Survey) for the year 2018-19, the literacy rate for age 7 and above was 69.4% for STs, 72.2% for SCs, 77.5% for OBCs, and 85.9% for others.67 D

56. This data makes a case for an intensive study into diverse areas such as the adequacy or otherwise of scholarships, quantum disbursed, eligibility criteria (the maximum family income limit of ` 2,50,000/- possibly excludes large segments of beneficiaries, given that even Group D employment in the Central Government can result in exclusion of any scholarships to children of such employees), and E reconsideration about introducing other facilities, such as incentivising scholarships, grants and interest free or extremely low interest education loans to widen the net of recipients and beneficiaries. States and the Union government may also revisit the threshold limits and their tendency to exclude otherwise deserving candidates. For instance, even if an SC/ F 64 Available at https://niti.gov.in/planningcommission.gov.in/docs/plans/planrel/fiveyr/11th/ 11_v1/11v1_ch6.pdf (Last accessed on 21.04.2021). 65 Reports and Publications, Ministry of Statistics and Program Implementation, available athttp ://mo spi. nic. in /s ites/d efau lt/file s/rep orts _and_p ublicati on / cso_ research_an d_p ublicatio n_ unit/COSIOIESIOTS DV OL-2 / Pages%20from%20educations-1.13.pdf (Last accessed on 22.04.2021). 66 Reports and Publications, Ministry of Statistics and Program Implementation, available G athttp ://mo spi. nic. in /s ites/d efau lt/file s/rep orts _and_p ublicati on / cso_ research_an d_p ublicatio n_ unit/COSIOIESIOTS DV OL-2 / Pages%20from%20educations-1.12.pdf (Last accessed on 22.04.2021). 67 Table 49, Annual Report (Periodic Labour Force Survey) 2018-19, available at http:// mospi.nic.in/sites/default/files/publication_reports/ Annual_Report_PLFS_2018_19_HL.pdf, p. A-363 (Last accessed on 22.04.2021). H

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A ST or SEBC household has an income of ` 6,00,000/- year, the denial of scholarship to a deserving student from that background cannot equate her or him with another candidate, whose family income might be four times that amount, and who might be able to pay annual fees for medical education, in private educational institutions. In other words, there needs to be constant scrutiny, review and revision of these policies and their B effectiveness, besides the aspect of increasing funding, etc. The wider possibilities of affirmative action- USA, South Africa and Canada The US Experience

C 57. In the US, in Fullilove v. Klutznick,68 the US Supreme Court rejected a challenge to the constitutionality of a federal law demanding preferential treatment of minority-owned businesses through a racial quota system. The challenged law69 prescribed pre-conditions for receipt of state and local government public works grants upon the private entity’s assurance that at least 10% of the amount of each grant would be spent on contracts with minority business enterprises (MBEs). Public contracts normally were awarded to the lowest bidder; the provision operated to grant public works contracts to the lowest bidder who complied with the 10% set-aside (quota) goal. The executive policy framed pursuant to the Act imposed upon those receiving grants and their prime contractors an affirmative duty to seek out and employ available, qualified, and bona fide MBEs. As the objective of the MBE provision was to overcome longstanding barriers to minority participation in public contracting opportunities, the set-aside provision i.e. condition favoured a higher MBE bid as long as the higher price reflected inflated costs resulting from past disadvantage and discrimination. The administrative program therefore authorized the Economic Development Agency to waive the minority participation requirement where a high minority business bid is not attributable to the present effects of past discrimination. The plaintiffs in Fullilove were non-minority associations of construction contractors and subcontractors. They alleged that enforcement of the Public Works Act’s MBE requirement caused economic injury to the non-minority business plaintiffs. In addition, the plaintiffs asserted that the MBE 10% quota provision violated the equal protection clause of the fourteenth amendment and the equal protection element of the due process clause of the fifth amendment. 68 448 U.S. 448 (1980). 69 H Section 103(f)(2), Public Works Employment Act of 1977

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58. The US Supreme Court held that the interference with the A business opportunities of non-minority firms caused by the 10% set- aside program did not render the Act constitutionally defective. The Court rejected the alleged equal protection violation on the grounds that the Act ensured equal protection of the laws by providing minority businesses an equal opportunity to participate in federal grants. The later decision B Adarand Constructors, Inc. v. Penal70 held that federal affirmative action programs are now subject to strict scrutiny, just as state and local programs were since 1989. The court held that “federal racial classifications, like those of a state, must serve a compelling governmental interest, and must be narrowly tailored to further that interest.” C South Africa

59. Under South Africa’s Constitution of 1998, Chapter 2, Article 9(3) dealing with “Equality” reads thus: “The state may not unfairly discriminate directly or indirectly against any one on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth”. Chapter 10 says that public administration “must be broadly representative of the South African people, with objectivity [and] fairness,” and it needs “to redress the imbalances of the past to achieve broad representation”.

60. In furtherance of these provisions, in October 1998, the Employment Equity Act was legislated. The Act starts with the premise that “pronounced disadvantages” created by past policies cannot be redressed by a simple repeal of past discriminatory laws, and there was a need to enforce “employment equity to redress the effects of discrimination,” and “achieve a diverse workforce broadly representative” of the people of South Africa. The Act has two purposes: (1) to promote “equal opportunity and fair treatment in employment through the elimination of unfair discrimination,” and (2) to implement “affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and 70 515 U.S. 200 (1995) H

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A levels in the workforce.” Designated groups are defined as black people (who include Africans, Coloureds and Indians), women, and people with disabilities.

61. Affirmative action measures for designated groups must include identification and removal of barriers adversely affecting them, actions to further diversity, reasonable accommodations to ensure equal opportunity and equitable representation, and efforts at training to retain and develop them. Representation is extended to all occupational categories and levels in the workforce and this is to be ensured through preferential treatment and numerical goals, but not with quotas. The Employment Equity Plan itself must state the objectives to be achieved each year, the affirmative action measures with timetables and strategies to be implemented to accomplish them, and the procedure to evaluate the plan. Each plan ought not to be for a period of less than one year, and not longer than five years. (At the expiration of one plan, another may follow.) While preferential treatment is meant for only suitably qualified people, such suitability may be a product of formal qualifications, prior learning, relevant experience, or capacity to acquire, within a reasonable time, the ability to do the job.

62. Under the Employment Equity Act, employers must consult with their employees and representative trade unions, after which an audit of employment policies and practices in the workplace must be undertaken. Analysis of the information garnered in the audit is meant to assist in developing demographic profiles of the work force, and identifying barriers to the employment or advancement of designated groups. Under- representation of designated groups in all categories of work must also be identified. Quotas are expressly prohibited under Section 15(3) of the F Act. In 2003, the Black Economic Empowerment Act was legislated. This Act has as its purpose the “economic empowerment of all black people, including women, workers, youth, people with disabilities and people living in rural areas”. To measure compliance with black economic empowerment (BEE) requirements, the Department of Trade G and Industry uses a balanced scorecard, consisting of three broad components. The scorecard will be used for government procurement, public-private partnerships, sale of state-owned enterprises, when licenses are applied for, and for any other relevant economic activity. Strategies aimed at levelling the playing field may include the elimination of employment barriers such as adapting testing requirements to compensate H

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for educational disadvantage or lack of work experience71; reviewing recruitment, selection and promotion procedures to ensure fairness in job competition 72; accelerated and corrective training; and the transformation of work environments that exclude or otherwise disadvantage designated groups, e.g. measures aimed at integrating career and family responsibilities73 (flexible work schedules, child care structures, facilitating career breaks, etc). Canada

63. In Canadian National Railway Co v. Canada (Canadian Human Rights Commission)74, Dickson J. reasoned that the purpose of an affirmative action programme is to break a continuing cycle of systemic discrimination. The goal is not to compensate past victims or even to provide new opportunities for specific individuals who have been unfairly refused jobs or promotion in the past, but to ensure that future applicants and workers from the affected groups will not face the same insidious barriers that blocked their forebears. D

64. In Ontario (Human Rights Commission) v Ontario (Ministry of Health)75, the Ontario Court of Appeal interpreted the affirmative action provisions of the Ontario Human Rights Code 1990 and the Canadian Human Rights Act 1985, to reinforce the important insight that substantive equality requires positive action to ameliorate the conditions of disadvantaged groups. One of the important purposes of the provisions is to protect affirmative action programmes from being challenged as violating the formal equality provisions contained elsewhere in the Code or Act. Affirmative action, according to the court, is aimed at “achieving substantive equality by enabling or assisting disadvantaged persons to acquire skills so that they can compete equally for jobs on a level playing field with those 71 Durban City Council (Physical Environment Service Unit) v. Durban Municipal Employees’ Society (DMES) (1995) 4 ARB 6.9.14. 72 Durban Metro Council (Consolidated Billing) v. IMATU obo Van Zyl and Another G (1998) 7 ARB 6.14. 1. 73 Kalanke v. Frete Hansestadt Bremen Case C-450/93 [1996] 1 CMLR 175 (ECJ) at 181. 74 [1987] 1 SCR 1114 at 1143. 75 (1994) 21 CHRR (Ont CA) D/259 at D/265, quoting with approval Sheppard ‘Litigating the relationship between equity and equality’ (Study paper of the Ontario Law Reform Commission) Toronto (1993) 28. H

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A who do not have the disadvantage. The purpose of s. 14(l) is not simply to exempt or protect affirmative action programs from challenge. It is also an interpretative aid that clarifies the full meaning of equal rights by promoting substantive equality”. 76 B Possibilities for Affirmative Action other than Reservation in India

65. The US practice of encouraging diversity by incentivising it by for instance, the award of government contracts to firms that have a good record of recruiting members from racially or ethnically C disadvantaged groups, has found echo in policies in Madhya Pradesh. Other States such as UP, Bihar, Karnataka, AP and Telangana have followed a policy of affirmative action in awarding contracts and in that manner protecting SC and ST entrepreneurs’ entry into trade, business and other public works as contractors. Recently, Karnataka enacted a legislation, namely, the Karnataka Transparency in Public Procurement D (Amendment) Act, 2016, which reserves 24.1% for SC and ST contracts in all Government works, public contracts up to ` 50 lakh. This law aims to ensure the presence of SC and ST contractors and to get the award of Government work without rigid tender process. Orissa, too provides for a price preference to SC/ST entrepreneurs to the extent of 10% of contracts of a certain value.

66. There is empirical evidence, in India, in different sectors that access to productive employment is confined to a few sections of the workforce, among the most backward of classes, while the rest eke out a living in the informal economy. The faultlines of division between those who are employed in good jobs and those who are “excluded” run deep, and are based on caste, religion, region, and other sectarian divisions all of which overlap with class and gender, such that even within the small section of the workforce which is productively employed in decent jobs, some groups are better represented than others, placed higher than others, while some castes and communities are practically absent in the top echelons of the private corporate sector. While private employers firmly believe that jobs should be allocated on the basis of individual merit, their views about how merit is distributed overlaps strongly with existing stereotypes around caste, religion, gender and regional differences. 76 (1994) 21 CHRR (Ont CA) D/259 at D/265. H

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67. A method by which the private sector can substantively contribute to alleviate discrimination and inequality, is through its corporate social responsibility (CSR) programmes. CSR has been compulsory in India since 2013. These initiatives have taken two major forms: education of the under-privileged either through special schools or other programmes to support school-going children, and support to poor women through home-based work or micro-finance. While these measures are significant, there are other spheres where CSR could be directed, with even greater benefits. The definition and scope of CSR needs to be broadened to include measures to counteract the natural tendencies towards exclusion of certain groups. Private sector managements need to show sensitivity to societal patterns of exclusion and must consciously make an attempt not to fall prey dominant social stereotypes, which penalize people due to their birth into stigmatizing jobs, even if they might be individually qualified and competent.

68. In addition to being sensitized to the problem of under- representation at the time of employment (by actively pursuing policies to promote and/or by equal opportunity employment policies), private companies can also pay attention to supplier diversity in matters of procurement. By encouraging supplies from firms owned by SCs, STs, or those from backward class or deprived classes, the large organized private sector in India could give a huge boost to the micro, medium and small enterprises owned by entrepreneurs from such marginalized groups. E Indeed, this is also one of the planks used in the USA, for instance, where minority-owned businesses are not only given active financial incentives by the government, but larger firms are expected to source a part of their supplies from minority-owned businesses. Given that typically, SC, ST and backward class individuals owned micro enterprises are likely to employ greater proportion of persons from these communities (as compared to enterprises owned by upper-caste groups), an active supplier diversity programme would also boost employment.

69. In view of all these developments, it is time that the states and the Union government gather data about the extent and reach of the existing schemes for employment, and in the field of education, take steps to ensure greater access, by wherever necessary, increasing funding, increasing the number and extent of coverage of scholarships, and setting up all manner of special institutions which can train candidates aspiring for higher education, to increase their chances of entry in admission H

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A tests, etc. Likewise, innovative employment incentives to the private sector, especially in the manner of employment in contracts or projects awarded by the state or its instrumentalities, need to be closely examined and implemented. These welfare measures can also include giving tax incentives to schemes that fund scholarships and easy (or interest free) loans to SC, ST and SEBC students, which can enhance their access to educational institutions. Today, even if an SC, or SEBC candidate secures admission in a common entrance examination for a medical seat, in a private institution, the amounts charged as annual fees would exclude most of such candidates (even those who are ineligible to government scholarships, as being marginally above the threshold of ` 2,50,000/- per annum annual family income). Other incentives, such as awarding marks while evaluating private entities for the purpose of public tenders, and giving them appropriate scores or advantage, if their workforce employs defined percentages of SC/ST or SEBC individuals, etc. too would make a substantial difference. D Re Point No (2) Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case? and Re Point No (3) Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney?

70. I agree, with respect, with the reasoning and conclusions of Ashok Bhushan, J. on the above two points of reference and have nothing to add. G Re: Point No. 4 Whether Article 342 of the Constitution abrogates State power to legislate or classify in respect of “any backward class of citizens” and thereby affect the federal policy/ structure of the Constitution of India? And Point No. 5 Whether, States’ power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway H