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

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abridged by Article 342(A) read with Article 366(26c) of the A Constitution of India? I.Relevant provisions in consideration

71. Both the above points of reference, by their nature, have to be and therefore, are considered together. The Constitution (123 rd Amendment) Bill, 2017, after its passage became the Constitution (One B Hundred and Second Amendment) Act, 2018; it received the assent of the President of India and came into force on 15.⁸.2018. The amendment inserted Articles 338B and 342A. These are reproduced below: “338B. (1) There shall be a Commission for the socially and educationally backward classes to be known as the National C Commission for Backward Classes. (2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice- D Chairperson and other Members so appointed shall be such as the President may by rule determine. (3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal. E (4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission— (a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes; (c) to participate and advise on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State; H

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

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(d) requisitioning any public record or copy thereof from any A court or office; (e) issuing commissions for the examination of witnesses and documents; (f) any other matter which the President may, by rule, determine. B

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

72. Article 366(26C), which defined “socially and educationally backward classes “too was inserted; it is reproduced below, for the sake of reference: ‘366. Definitions.-In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say- (1) …. G xxxxxx xxxxxx xxxxxx (26C) “socially and educationally backward classes” means such backward classes as are so deemed under article 342A for the purposes of this Constitution;’ H

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A 73. The Bill which was moved in Parliament by which the 102ndamendment was introduced, interalia, stated as follows: “STATEMENT OF OBJECTS AND REASONS xxxxxx xxxxxx xxxxxx

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

3. In the year 1992, the Supreme Court of India in the matter of Indra Sawhney and others Vs. Union of India and others D (AIR 1993, SC 477) had directed the Government of India to constitute a permanent body for entertaining, examining and recommending requests for inclusion and complaints of over- inclusion and under-inclusion in the Central List of Other Backward Classes. Pursuant to the said Judgment, the E National Commission for Backward Classes Act was enacted in April, 1993 and the National Commission for Backward Classes was constituted on 14th August, 1993 under the said Act. At present the functions of the National Commission for Backward Classes is limited to examining the requests for inclusion of any class of citizens as a backward class in the F Lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. Now, in order to safeguard the interests of the Socially and Educationally Backward Classes more effectively, it is proposed to create a G National Commission for Backward Classes with constitutional status at par with the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes.

4. The National Commission for the Scheduled Castes has recommended in its Report for 2014-15 that the handling of the grievances of the Socially and Educationally Backward H

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Classes under clause (10) of article 338 should be given to A the National Commission for Backward Classes.

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

74. The appellants argue that the Maharashtra SEBC Act (which was enacted and brought into force on 30.11.2018), could not have been enacted, and is clearly void. It is argued that on a plain reading of Article 342A read with Article 366(26C), it is clear that States were denuded of E their power to identify backward classes and the task was to be performed exclusively by the National Commission for Backward Classes set up under Article 338B (hereafter “NCBC”). Mr. Arvind Datar, Mr. Shyam Divan and Mr. Gopal Sankaranarayanan, learned senior counsel emphasized that the expression “for the purposes of this Constitution” F under Article 366(26C) and Article 342A(1) can only imply that the States’ jurisdiction and power to identify a community as a backward class stood denuded. Consequently, it is only upon the recommendation of the NCBC that any community can henceforth be included in the list of SEBCs. It was submitted that by virtue of Article 342A, even the Union or the Central Government ceases to have any power to modify, G add to or delete from the list so notified under Article 342A(1). It is Parliament alone which can make such modification, deletion or alteration. The term ‘Central List’ in Article 342(2) is not the list published by the Union for the affairs of the Union. The Constitution has used the word “Union” wherever the reference is made to the Government of India or H

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A Central Government, i.e., Articles 53, 73, 79, 309, List I of Schedule VII whereas the word ‘Central Government’ has been used recently in certain amendments which is not the expression used in the Constitution originally adopted. Thus, the reference to “Central List” means only the List in relation to states and union territories, for the purpose of the Constitution notified under Article 342A (1). B

75. Learned senior counsel argued that the decision in Indra Sawhney (supra) 77 had required the setting up of permanent Commissions for identifying communities or castes such as backward classes to enable their notification by their respective governments. In the light of this recommendation and having regard to the principal existing provision under Article 340, Parliament had enacted the National Commission for Backward Classes Act, 1993 (hereafter “the NCBC Act”). That enactment used the expression, “Central list” in Section 2(c) 78.

76. Learned counsel for the appellants submitted that while amending the Constitution, the expression “Central List” meant the List to be published by the President on the aid and advice of the Council of Ministers, after consultation with the Governors, i.e., the aid and advice of the State Governments. Thus, having regard to plain language of Article 366(26C) and Article 342A as well as the provisions in Article 338B (7), E (8) and (9), there is no question of the State Governments or State Legislatures retaining any power to identify backward classes. That power is with the President.

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pressure or apply ad-hoc criteria and set up ad-hoc bodies which did A not or could not consider issues in a dispassionate and holistic manner. Learned counsel relied upon the decision of this Court in Ram Singh &Ors. v. Union of India (supra)79 to say that demands made by such communities led to States providing special reservation, which became the subject matter of judicial scrutiny. B

78. Learned counsel also referred to agitations for inclusion of communities in other States such as Rajasthan which also led to repeated litigation. It was, therefore, argued that to avoid these instances, and to ensure that a national standard for considering the relevant indicia for backwardness is constitutionally applied, an amendment to the Constitution was made. Learned counsel urged that the position adopted by the States, i.e., that they were not denuded of executive and legislative power and that the amendment only sought to give additional constitutional status to the existing NCBC is unfounded. It was pointed out that before the coming into force of the Constitution (102ndAmendment) Act, 2018, Article 340 existed under the original Constitution. Parliament, in exercise of its legislative power, enacted the NCBC Act. The NCBC had existed for 27 years and had conducted surveys and identified several communities as backward. The lists published by it were in existence and were in use by the Central Government for its purposes, including in public employment. Undoubtedly, not all communities included in the States’ lists were part of the NCBC list. However, the list was broadly common to a large extent. Learned counsel emphasized that there was no necessity for bringing any constitutional amendment if the new Commission were to be given constitutional status and the lists published by it, made binding only on the Central Government which was to acquire such high degree of status that it could be modified by Parliament alone. F It was submitted that surely, State interference with the Central list did not warrant such a drastic measure as a constitutional amendment. 79 “54. The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. G Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State.” H

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A 79. Mr. Sankaranarayanan submitted that although there are passages in the report of the Select Committee of the Rajya Sabha, Parliament had discussed the amendment and taken into account the views of certain individuals; the fact remains that it is the text of the Constitution as amended, which is to be interpreted. Learned counsel relied upon the decisions reported as State of Travancore-Cochin v. B Bombay Company Ltd80; Aswini Kumar Ghose & Anr. v. Arabinda Ghose & Anr.81 and P.V. Narasimha Rao v. State82. He also referred to the decision in Sanjeev Coke Manufacturing v. Bharat Coking Coal Ltd. &Anr83.It was submitted that the consistent opinion of this Court has been the one adopted in Pepper v. Hart84, which permits reference to the statements made in the House at the time of the introduction of Bill as an aid to construction of legislation which is ambiguous or obscure, and not in any other circumstances. It was thus submitted that the intention of the amendment was to ensure that a uniform standard and one aware of looking at backwardness in an objective manner, was to be adopted and applied, for the purposes of the Constitution. This also was aimed at eliminating the mischief that led to the introduction of communities as a consequence of protests – having been triggered by political considerations on the eve of elections.

80. The submissions articulated on behalf of the respondent States by Mr. Mukul Rohatgi, Mr. Kapil Sibal, Dr. A.M. Singhvi and Mr. E Naphade, Additional Advocates General and Standing Counsel appearing on behalf of the various States, was that the interpretation suggested by the appellants is drastic. It was emphasized that the States’ responsibility under Article 15(4) and 16(4) to make special provisions including reservations is undeniable. In the absence of any amendment to these provisions, learned counsel submitted that the Constitution (102ndAmendment) Act, 2018 cannot be so interpreted as to denude the States of their powers altogether. Learned counsel submitted that pursuant to the recommendations and directions in Indra Sawhney (supra), not only was the NCBC Act enacted; in addition, different States also set up permanent commissions to identify communities as backward classes for the purpose of Constitution. Those Commissions 80 1952 SCR 1112 81 AIR 1953 SC 75 82 (1998) 4 SCC 626. 83 (1983) 1 SCR 1000. 84 H 1993 (1) All. ER 42.

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were set up in exercise of legislative powers traceable to one or the A other Entry in List II of the Seventh Schedule to the Constitution. The plenary legislative power of the States remains unaltered. That being the case, this Court should not accept the appellants’ submission that Articles 338B and 342A place fetters upon the exercise of such legislative power as well as executive power of the States. B

81. Learned counsel submitted that this Court should closely examine the contents of the report of the Select Committee of the Rajya Sabha, and the statements made by the Government, particularly that the power and jurisdiction of the States would remain unaffected. It was further urged that this Court can and should and ought to have looked into the contents of these reports to discern the true meaning and intent behind the Constitution (One Hundred and Second Amendment) Act, 2018, which was not to disrupt the existing legislative arrangement between the Centre and the State. In this regard, learned counsel placed reliance upon the judgment of this Court in Kalpana Mehta and Ors. v. Union of India and Ors.85, and submitted that the Court can take aid of reports of Parliamentary Committees for the purpose of appreciating the historical background of statutory provisions, and also to resolve the ambiguity in the legislation.

82. It was submitted that if the matter were to be considered in the true perspective and the report of the Select Committee, examined as an aid to interpretation of the Constitution (102ndAmendment) Act, 2018, especially Article 342A, it would be apparent that the Parliament never intended, by the amendment, to disturb the existing order and denude the States of their executive or legislative power to identity backward classes while making special provisions under Articles 15(4) and 16(4). It was submitted that Indra Sawhney (supra) only created a larger movement for the setting-up of Commissions by the Union and the States. Learned counsel emphasized that even while identifying the communities for the purpose of the Central List, the views of the States were always ascertained. Parliament merely sought to replicate the amendment by which collection of data has been undertaken under Article 338 (in relation to SCs). The introduction of Article 338B was in line with the introduction of Articles 338A and 338 – which enables the setting-up of National Commissions for Scheduled Castes and Scheduled Tribes(the latter through another amendment which was brought into force on 19.02.2004). 85 (2018) 7 SCC 1 H

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A 83. It was submitted that Articles 366(26C), 338B and 342A(1) have to, therefore, be read harmoniously in the light of the expression “Central List” which occurs in Article 342A(2). This would be in keeping with the debates and assurances held out in the Select Committee report that States’ power would continue to remain unaffected. It was submitted that such construction would result in a harmonious interpretation of all B provisions of the Constitution.

84. The learned Attorney General, appearing on account of notice issued by this Court, urged that the 102nd Amendment did not bring about a radical change in the power of identification of backward classes, in relation to states, and that this power continues to remain with states. C He submitted that the comparison by the appellants, with the powers conferred by Article 338 and the Presidential power under Article 341 and Article 342, is inapt, because those were original provisions of the Constitution, having a historical background. It was submitted that the states’ responsibilities to uplift the lot of weaker sections, apparent from D the directive principle under Article 46, is through affirmative policies under Articles 15(4) and 16(4). To alter this balance, which had existed from the beginning of the coming into force of the Constitution, is too drastic, and nothing in the debates leading to the 102nd Amendment, or in any material, such as the Select Committee Report, suggests that end.

E 85. The learned Attorney General also submitted that the object of the 102 nd amendment was to ensure that a commission with constitutional status would periodically examine the needs of socially and educationally backward classes (“SEBC” hereafter), and suggest inclusion or exclusion of such classes, in a list for the purposes of Central Government, or central public sector corporation employment, and extension of other benefits under union educational and other institutions, under Articles 15 (4) and 16 (4). In case such a list is drawn and published under Article 342A (1), it is only Parliament that has the power to modify it. This does not, in any manner disturb or take away the states’ power to identify or include communities as backward classes of citizens for the purposes of benefits that they wish to extend to them, through state policies and legislation, or for reservation in state employment under Article 16 (4). He highlighted that the term “Unless the context otherwise requires” is the controlling phrase, which precedes the definition of various terms under Article 366 of the Constitution. Therefore, if the context is different- as is evident from Article 342A (2), by the use H

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of the term “Central List”, that should be given meaning, and the A interpretation based on that meaning should prevail in the construction of the entire provision (i.e. Article 342A).

86. The learned Attorney General further argued that this court had specifically recognized the states’ power to identify, make special provisions, and reservations, in Indra Sawhney. He urged that the 102nd B Amendment was not meant to limit this constitutional obligation of the states, but rather to streamline the method of identification of socially and educationally backward class of citizens, for the purpose of central employment, and centrally funded and sponsored schemes, institutions and facilities. It was urged that this is apparent from the use of the expression “Central List” in Article 342A (2), which has to guide the interpretation of the list referred to in Article 342A (1). III. Provisions relating to Scheduled Castes and Scheduled Tribes, in the Constitution of India

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A “a more effective arrangement in respect of the constitutional safeguards for Scheduled Castes and Scheduled Tribes than a single Special Officer as at present. It is also felt that it is necessary to elaborate the functions of the said Commission so as to cover measures that should be taken by the Union or any State for the effective implementation of those safeguards B and other measures for the protection, welfare and socio- economic development of the Scheduled Castes and Scheduled Tribes.”

88. The composite Commission for SCs and STs was bifurcated by another amendment- the Constitution (Eighty Ninth Amendment) Act, C 2003, which inserted Article 338A, enabling the creation of a commission exclusively to consider measures and make recommendations for amelioration of STs. Article 338B has now been introduced through the 102nd amendment, which is in issue.

89. The relevant provisions relating to SCs and STs under the D Constitution are extracted below: “Article 366

366. Definitions.-In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say- E (1) xxxxxx xxxxxx xxxxxx (24) “Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution;” F (25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution;” Article 338

G 338. [National Commission for Scheduled Castes] (1) There shall be a Commission for the Scheduled Castes to be known as the National Commission for the Scheduled Castes. (2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions H

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of service and tenure of office of the Chairperson, Vice- A Chairperson and other Members so appointed shall be such as the President may by rule determine. (3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal. B (4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission — (a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes; (c) to participate and advise on the planning process of socio- economic development of the Scheduled Castes and to evaluate the progress of their development under the Union and any State; E (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for F the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the G Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by rule specify. (6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the H

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A recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations. (7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State B who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations. C (8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely :—

D (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any documents; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses and documents; (f) any other matter which the President may, by rule, determine. (9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes.” Before the 102nd Amendment Act, the following sub-Article formed part of Article 338: “(10) In this article, references to the Scheduled Castes and to such other backward classes as the President may, on receipt of the report of a Commission appointed under clause (1) of article 340, by order specify and also shall be construed as including references to the Anglo-Indian community.”

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By the 102nd Amendment Act, the words “and to such other A backward classes as the President may, on receipt of the report of a Commission appointed under clause (1) of article 340, by order specify” were deleted89. The other provisions relating to SCs and STs are as follows: “338A. National Commission for Scheduled Tribes.— B (1) There shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes. (2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, C Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice- Chairperson and other Members so appointed shall be such as the President may by rule determine. (3) The Chairperson, Vice-Chairperson and other Members D of the Commission shall be appointed by the President by warrant under his hand and seal. (4) The Commission shall have the power to regulate its own procedure. E (5) It shall be the duty of the Commission— (a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; F (b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes; (c) to participate and advise on the planning process of socio- economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any G State; 89 By Section 2 which is as follows:“2. In article 338 of the Constitution, in clause (10), the words, brackets and figures “to such other backward classes as the President may, on receipt of the report of a Commission appointed under clause (1) of article 340, by order specify and also” shall be omitted”. H

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A (d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards; (e) to make in such reports recommendation as to the measures that should be taken by the Union or any State for the effective B implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the C Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify. (6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for D the non-acceptance, if any, of any such recommendations. (7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the E State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations. (8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:— (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; H

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(e) issuing commissions for the examination of witnesses and A documents; (f) any other matter which the President may, by rule, determine. (9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled B Tribes.] Article 341

341. Scheduled Castes-(1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause ( 1 ) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification Article 342 E

342. Scheduled Tribes -(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes F of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause ( 1 ) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a G notification issued under the said clause shall not be varied by any subsequent notification.” IV. Previous commissions set up to identify SEBCs

90. It would be useful at this stage to recollect that before Indra Sawhney, two commissions were set up at the national level, to examine H

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A and make suitable recommendations in respect of identification of other backward classes. These were the Kaka Kalelkar Commission90 and the B.P. Mandal Commission91. The Kalelkar Commission, after an exhaustive survey and study, through its report, identified 2399 backward groups and recommended several measures for their advancement, as steps that could be taken by the Union and the states. The Mandal B Commission report identified individuals belonging to 3,743 different castes and communities, as “backward”. V. Interpretation of provisions similar to Article 342A- i.e. Articles 341 and 342 of the Constitution of India

91. The consistent view while interpreting Articles 341 and 342 C has been that the power which the Constitution conferred is initially upon the President, who, after the introduction of the 65th and 89th Amendments and the insertion of Articles 338 and 338A, is aided in the task of identification of the SCs and STs, by two separate Commissions, to include or exclude members claiming to be SCs or STs. The view of D this Court has been that once a determination has been done, no court can, by interpretive process, or even the executive through its policies, include members of other communities as falling within a particular class or described community or even in any manner extend the terms of the determination under Articles 341 or 342. The power to further include, or modify contents of the existing list (of SC/STs) is with Parliament E only [by reason of Article341 (2) and Article 342 (2)] This position has been consistently followed in a series of decisions. Likewise, in the interpretation as to which communities are categorized as SCs or STs, this Court has been definite, i.e. that only such classes or communities who specifically fall within one or the other lists, that constitute SCs or F such STs for the purpose of this Constitution under Article 366(24) and Article 366 (25). This has been established in the decision of this Court in Bhaiya Lal v. Harikishan Singh 92 ; Basavalingappa v Munichinnappa93 and Kishori Lal Hans v. Raja Ram Singh94 The recent Constitution Bench decision in Bir Singh v. Delhi Jal Board95, reiterated this position clearly: G 90 Set up by the Central Government, in January 1953. 91 Set up by the Central Government on 1 January, 1979. 92 1965 (2) SCR 877. 93 1965 (1) SCR 316. 94 1972 (3) SCC 1. 95 (2018) 10 SCC 312. H

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“36. The upshot of the aforesaid discussion would lead us to the conclusion that the Presidential Orders issued under Article 341 in regard to Scheduled Castes and under Article 342 in regard to Scheduled Tribes cannot be varied or altered by any authority including the Court. It is Parliament alone which has been vested with the power to so act, that too, by laws made. Scheduled Castes and Scheduled Tribes thus specified in relation to a State or a Union Territory does not carry the same status in another State or Union Territory. Any expansion/deletion of the list of Scheduled Castes/Scheduled Tribes by any authority except Parliament would be against the constitutional mandate under Articles 341 and 342 of the C Constitution of India. ******** ********

38. It is an unquestionable principle of interpretation that interrelated statutory as well as constitutional provisions have to be harmoniously construed and understood so as to avoid making any provision nugatory and redundant. If the list of Scheduled Castes/Scheduled Tribes in the Presidential Orders under Articles 341/342 is subject to alteration only by laws made by Parliament, operation of the lists of Scheduled Castes and Scheduled Tribes beyond the classes or categories enumerated under the Presidential Order for a particular State/ Union Territory by exercise of the enabling power vested by Article 16(4)would have the obvious effect of circumventing the specific constitutional provisions in Articles 341/342. In this regard, it must also be noted that the power under Article 16(4) is not only capable of being exercised by a legislative provision/enactment but also by an Executive Order issued under Article 166 of the Constitution. It will, therefore, be in consonance with the constitutional scheme to understand the enabling provision under Article 16(4) to be available to provide reservation only to the classes or categories of G Scheduled Castes/Scheduled Tribes enumerated in the Presidential Orders for a particular State/Union Territory within the geographical area of that State and not beyond. If in the opinion of a State it is necessary to extend the benefit of reservation to a class/category of Scheduled Castes/ H

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A Scheduled Tribes beyond those specified in the Lists for that particular State, constitutional discipline would require the State to make its views in the matter prevail with the central authority so as to enable an appropriate parliamentary exercise to be made by an amendment of the Lists of Scheduled Castes/Scheduled Tribes for that particular State. Unilateral B action by States on the touchstone of Article 16(4) of the Constitution could be a possible trigger point of constitutional anarchy and therefore must be held to be impermissible under the Constitution.” VI. Pre-102 nd Amendment position in the Constitution in relation to SEBCs

92. The original Constitution did not contain any special provision of like manner as Articles 341 and 342. It did not define SEBCs. The only reference to SEBCs was in Article 340, which enabled the Central Government to setup a Commission for recommending measures for the progress and upliftment of backward classes of citizens. That provision is as follows: “340. Appointment of a Commission to investigate the conditions of backward classes (1) The President may by order appoint a Commission E consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State the conditions subject to which such grants should be made, and the order appointing such Commission shall define the procedure to be followed by the Commission (2) A Commission so appointed shall investigate the matters referred to them and present to the President a report setting out the facts as found by them and making such recommendations as they think proper (3) The President shall cause a copy of the report so presented together with a memorandum explaining the action taken thereon to be laid before each House of Parliament”

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93. After the decision of this Court in Champakam Dorairajan A v. State of Madras⁹⁶, Article 15 was amended and Article 15 (4) was introduced. The term “socially and educationally backward class of citizens” was inserted, conferring power upon the State to make special provisions for their advancement. This term “socially and educationally backward” has been held to also provide colour the term “backward B class” in the decision in Indra Sawhney – as indeed in the earlier decision in NM Thomas (supra). This court noticed that ‘backward class’ of citizens, though wider in context, has to take colour from social backwardness, which also results in educational backwardness.

94. Indra Sawhney in para 859 (13)97, had issued directions with regard to the desirability of setting up Commissions by the Central and C State Governments, to ascertain the position and identification of backward class of citizens, evaluation of rational criteria and periodic review of such lists. Pursuant to this direction, Parliament introduced the NCBC Act, 1993. This Act defined ‘Central List’ under Section 2(c). The terms of this enactment make it clear that the lists of backward class of citizens prepared by the Commission and recommended to the Central Government were to be for the purposes of providing reservations in employment under Article 16(4), and for reservations and other ameliorate measures that the Central Government can initiate and introduce under Article 15(4). Acting on the recommendations of this court, post Indra Sawhney, several State Governments appeared to have enacted other laws for setting up commissions for backward class and backward caste groups⁹⁸. In four States – Tamil Nadu, Gujarat, Punjab and Haryana, the Commissions were set up by executive action.

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A Statement of Objects and Reasons for the introduction of these provisions – referred to compendiously as the 102nd Amendment – do not indicate any concrete purpose for the insertion of those provisions, except the general comment that Parliament wished to confer constitutional status on the Commission for determination of SEBCs. B VII. The Constitution 123 rd Amendment Bill, the 102 nd Amendment Act and report of the Parliamentary Standing Committee

96. Learned counsel for the respondents as indeed the appellants referred extensively to the deliberations recorded in and assurances given, and reflected in the Report of the Select Committee of the Rajya Sabha, submitted to the Parliament at the time when the 123rd amendment bill was introduced. A brief reference of this can now be made. The introduction (to the Report dated (July 2017) disclosed that in all, seven meetings were held by the Select Committee. The committee comprised 25 members, with a Secretariat of 7 officials. It took note of statements made by three representatives of the Ministry of Social Justice, two from the Department of Legal Affairs and three from the Legislative Department.

97. The Report noted the background of introduction of the 123rd Amendment Bill including the amendments to Article 338 and the introduction of Article 338B. It traces the history of the Backward Class Commissions set up under Article 340, the office memoranda which led to the Judgment in Indra Sahwney, as well as the direction by this Court in that Judgment regarding setting up of commissions. It further noted the existing legal regime i.e., the NCBC Act, and noted that several experts felt that there was no change or amendment needed to alter the existing regime for identification of backward classes. In Para 20 of the Report, it was noted that in the Fifth Consultation Meeting, the members had raised the concern as to whether Article 342A(1) would exclude state consultation. The relevant para reads as follows:

G “18. It was also submitted that the powers and functions of the State Government and the State Backward Classes Commissions with regard to identification, exclusion and inclusion of classes in the State List should be clarified. Further, the process of consultation with the Governor should also be clarified in the Bill. H

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19. In response to the above issues raised, the Ministry A clarified that sub-clause (9) of article 338B does not in any way interfere with the powers of the State Governments to prepare their own list. The Committee was further informed that classes so included in the State Backward Classes List do not automatically come in the Central List of OBCs. B

20. In its fifth meeting representatives/Members raised a concern about clause (1) of Article 342A, whether the list would be issued by the President after consultation with the State Government or consultation with only Governor of the State. It was clarified by the Ministry that clause (1) of Article 154 and Article 163 of the Constitution clearly state that the C Governor shall act on the advice of the Council of Ministers. It is also clarified that under the above Constitutional provisions, the Governor shall exercise his authority either directly or indirectly through officers of respective State Government. Article 341 of Constitution provides for consultation with Governor of State with respect to Scheduled Castes and Article 342 of the Constitution provides consultation of President with Governor of State in respect of Scheduled Tribes. As is the practice, at not time has the State Government been excluded in the consultation process. It is always invariably the State Government which recommends to the President the category of inclusion/exclusion in Scheduled Castes and Scheduled Tribes. Similar provision is provided for in the case of conferring of constitutional status for backward classes for inclusion in Central list of socially and educationally backward classes. Consultation with F Governor thereby implies consultation with the State Government.”

98. In its clause-by-clause consideration of the Bill, the Committee noted the apprehension with respect to setting up of a new Commission in Article 342B instead of creating it under Article 340. In this context, a G clarification was issued that Article 340 enabled setting up of adhoc bodies like the Kaka Kalelkar Commission and Mandal Commission, whereas Article 338B sought to confer Constitutional status on a multi- member permanent body. Paras 31-34 of the Report discussed the membership of the composition of the Commission under Article 338B H

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A and also whether the NCBC Act would be repealed. Interestingly, Para 47 reflects the discussion regarding an amendment by which new Sub- Article 10 was proposed to Article 338B. It read as follows: “47. The Committee discussed the amendment wherein in article 338B a new sub-clause (10) was proposed to be inserted. This sub-clause (10) would read as follows: ‘Notwithstanding anything provided in clause 9, the State Government shall continue to have powers to identify Socially and Educationally Backward Classes’.

99. The Committee was satisfied, in the Report with the clarification issued by the concerned Ministry in the following terms: “48. It was clarified by the Ministry of Social Justice and Empowerment to the Committee that the proposed amendment does not interfere with the powers of the State Governments to identify the Socially and Educationally Backward Classes. D The existing powers of the State Backward Classes Commission would continue to be there even after the passage of the Constitution (One Hundred and Twenty-third Amendment) Bill, 2017.”

100. Para 50-53 (of the Report) set out proposals to amend Article E 342A which limited it to making provisions for reservations in appointments or posts under the Government of India or under the authority of the Government of India and also consequential amendment to Article 342A (2). Further, a proposed Article 342A(3) sought to empower the State Government - i.e. the Governor which could by public F notification, specify SEBCs for the purposes of reservation of posts under the State or under any authority of the State. A like amendment was proposed, i.e., Article 342A (4) that: “the Governor may on the advice of the State Commission of Backward Classes include or exclude from the State list of socially and educationally backward classes specified in a G notification issued under Clause (3)”.

101. The other set of amendments discussed were firstly, to Article 342A(1) that with respect to a State or Union Territory, the President could make inclusions “with prior recommendation of the State Government, given due regard to such recommendations”, and H

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secondly, for the introduction of Article 342A(3) and (4) enabling the A State to issue public notifications - like in the case of Article 342A(1) and the consequential amendment thereof through legislation alone, via proposed Article 342A (4).

102. Other amendments with respect to placing the report of the Commission under Article 338B before both Houses of Parliament, B consultation with the governor to be based upon advice given to the governor by the state commission for backward classes, and amendment of the list under Article 342A (1) being only through a law based upon recommendations of the Commission under Article 338A and 338B and also obliging and revision of the list in ten year periods, were suggested. C

103. All these were duly considered in the Committee’s Report and not accepted, stating as follows: “54. The Ministry, on the amendments moved, clarified that time bound decadal revision of lists by the proposed Commission, is a continuous process. The Commission D however, is empowered to enquire into specific complaints with respect to the deprivation of right and safeguards of the socially and educationally backward classes.

55. The Ministry clarified that the aspect of reservation of posts under that State or under any other authority of the E State or under the control of the State, or seats in the educational institutions within that State was beyond the purview of the instant Bill and hence the amendments proposed are not allowed.

56. It was clarified by the Ministry that clause (1) of article F 154 and article 163 of the Constitution clearly state that Governor shall act on the advice of the Council of Ministers. It was informed that under the above Constitutional provisions the Governor shall exercise his authority either directly or indirectly through officers of respective State Government. Article 341 of Constitution provides for consultation by the G President with Governor of State with respect to Scheduled Castes and article 342 of the Constitution provides consultation by the President with Governor of State in respect of Scheduled Tribes. As is the practice at no time has the State Government been excluded in the consultation process. H

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A It is always invariably the State Government which recommends to the President the category of inclusion / exclusion in Scheduled Castes and Scheduled Tribes. Similar provision is provided for in the case of conferring of constitutional status for backward classes for inclusion in Central list of SEBC. Consultation with Governor thereby B implies consultation with the State Government.

57. The Ministry also clarified to the Committee that the phrase “for the purpose of this Constitution” as provided under clause (1) of article 342A is on lines similar to articles 341 and 342 of the Constitution. The setting up of the proposed Commission C will not be retrograde to the interest of the socially and educationally backward classes. The article 342A will provide for a comprehensive examination of each case of inclusion/ exclusion from the Central List. The ultimate power for such inclusion/exclusion would stand vested with the Parliament.

D 58. The Committee held discussion on the proposed amendments and in view of the detailed explanations furnished by the Ministry, the Committee adopted the Clause 4 of the Bill without any amendments. *** E

104. The section dealing with the amendment to Article 366 reads as follows: “Clause 5:Provides for amendment of article 366

59. This Clause proposes to insert a new clause (26C) in article F 366 which reads as under:- “(26C) socially and educationally backward classes” means such backward classes as are so deemed under article 342A for the purposes of this Constitution;” *** G

105. The Report of the Select Committee, made certain concluding general observations, a part of which stated that: “66. The Committee feels that the Constitutional Amendments proposed in this Bill would further strengthen affirmative H action in favour of socially and educationally backward

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classes as well as further boost concept of cooperative federalism between the Centre and States.

67. The Committee observes that the amendments do not in any way affect the independence and functioning of State Backward Classes Commissions’ and they will continue to exercise unhindered their powers of inclusion/exclusion of other backward classes with relation to State List.

68. The Committee also took note of the concerns raised by some Members regarding the composition of the Commission and would like to impress upon the Ministry that while addressing the concerns of the Members the rules framed for the Chairperson and Members of the National Commission for Scheduled Casts and National Commission for Scheduled Tribes may be taken into consideration. The Committee is of the view that while framing the rules for composition of the proposed Commission and selection of its Chairperson it should be ensured that the persons belonging to socially and educationally backward classes be given due representation to inspire confidence amongst the socially and educationally backward classes. It may further be ensured that at least one- woman member is part of the Commission.

69. The Committee hopes that the Bill would bring a sea change by putting in place effective and efficient delivery mechanism for the welfare of socially and educationally backward classes.” VIII Extrinsic aids to interpretation of statutes: the extent to which they can be relied upon F

106. The parties presented rival submissions with respect to interpretation of the words of the statute in the light of the reports of the Select Committee report as well as the debates in Parliament at the time of introduction of the amendment, or the law as enacted. The appellants asserted that such debates are of limited assistance only as external aids G in the case of an ambiguity and had relied upon a line of decisions starting with State of Travancore-Cochin v. Bombay Trading Company (supra) and culminating in P.V. Narasimha Rao (supra). On the other hand, the respondent States alluded to the larger bench decision of this Court in Kalpana Mehta (supra) which emphatically held that Standing H

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A Committee reports and statements made on the floor of House can be limited extrinsic aids for considering and interpreting express terms of a statute, or even the Constitution.

107. In the present case, the Statement of Objects and Reasons do not throw much light on why the provisions of the 102nd Amendment B Act were introduced. No doubt, there are certain passages in the Select Committee Report suggestive of the fact that the power of identification carved out through the newly inserted Articles 338B and 342A would not in any manner disturb the powers of the State to carry on their work in relation to special provisions or reservations for backward classes (through appropriate measures, be it legislative or executive). A holistic reading of the report also suggests that the Select Committee reflected both points of view and recorded the assurances given by the Ministry that the State’s power would not be disturbed. At the same time, in conclusion, it was emphatically stated that the States’ concerns would be given due regard and that the exercise would be in line with the existing procedure under Articles 341 and 342.99 The report also contains notes of dissent, which highlight that the amendments would deprive the States of their existing power to identify, and provide reservations and other special provisions for the benefit of SEBCs.

108. There cannot be a disagreement with the proposition that where the provisions of the statute or its wordings are ambiguous, the first attempt should be to find meaning, through internal aids, in the statute itself. Failing this, it is open to the court to find meaning, and resolve the ambiguity, by turning to external aids, which include the statements of objects and reasons, as well as Parliamentary reports, or debates in Parliament. To this Court, it appears that the task of interpreting the provisions of 102nd Amendment does not begin by relying on external aids such as Statement of Objects and Reasons (which throw practically no light on the meaning of the provisions), or even the Select Committee Report. The task of interpretation is first to consider the overall scheme of the provisions, and secondly, after considering the provision, proceed to resolve any perceived ambiguity, if found, by resorting to aids within G 99 “57. The Ministry also clarified to the Committee that the phrase “for the purpose of this Constitution” as provided under clause (1) of article 342A is on lines similar to articles 341 and 342 of the Constitution. The setting up of the proposed Commission will not be retrograde to the interest of the socially and educationally backward classes. The article 342A will provide for a comprehensive examination of each case of inclusion/ exclusion from the Central List. The ultimate power for such inclusion/exclusion would H stand vested with the Parliament.”

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the statute. It is at the third stage, when such resolution is impossible, that external aids are to be looked into. Thus, in a seven-judge bench decision, this court, in State of Karnataka v. Union of India 100 administered the following caution, while outlining the court’s task of interpreting the Constitution: “The dynamic needs of the nation, which a Constitution must fulfil, leave no room for merely pedantic hair-splitting play with words or semantic quibblings. This, however, does not mean that the Courts, acting under the guise of a judicial power, which certainly extends to even making the Constitution, in the sense that they may supplement it in those parts of it where the letter of the Constitution is silent or may leave room for its development by either ordinary legislation or judicial interpretation, can actually nullify, defeat, or distort the reasonably clear meaning of any part of the Constitution in order to give expression to some theories of their own about the broad or basic scheme of the Constitution. The theory behind the Constitution which can be taken into account for purposes of interpretation, by going even so far as to fill what have been called the “interstices” or spaces left unfilled, due perhaps to some deliberate vagueness or indefiniteness in the letter of the Constitution, must itself be gathered from express provisions of the Constitution. The E dubiousness of expressions used may be cured by Court by making their meanings clear and definite if necessary in the light of the broad and basic purposes set before themselves by the Constitution makers. And, these meanings may, in keeping with the objectives or ends which the Constitution of every nation must serve, change with changing requirements F of the times. The power of judicial interpretation, even if it includes what may be termed as “interstitial” law making, cannot extend to direct conflict with express provisions of the Constitution or to ruling them out of existence.”

109. The primary duty of this court, while interpreting a G constitutional provision(in the present case, an amendment to the Constitution, no less) was underlined thus, in GVK Industries Ltd. v. Income Tax Officer101 100 1978 (2) SCR 1. 101 (2011) 4 SCC 36. H

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A “37. In interpreting any law, including the Constitution, the text of the provision under consideration would be the primary source for discerning the meanings that inhere in the enactment. However, in light of the serious issues it would always be prudent, as a matter of constitutional necessity, to widen the search for the true meaning, purport and ambit of B the provision under consideration. No provision, and indeed no word or expression, of the Constitution exists in isolation— they are necessarily related to, transforming and in turn being transformed by, other provisions, words and phrases in the Constitution.

C 38. Our Constitution is both long and also an intricate matrix of meanings, purposes and structures. It is only by locating a particular constitutional provision under consideration within that constitutional matrix could one hope to be able to discern its true meaning, purport and ambit. As Prof. Laurence Tribe D points out: “[T]o understand the Constitution as a legal text, it is essential to recognize the … sort of text it is: a constitutive text that purports, in the name of the people…, to bring into being a number of distinct but inter-related institutions and practices, E at once legal and political, and to define the rules governing those institutions and practices.” (See Reflections on Free- Form Method in Constitutional Interpretation. [108 Harv L Rev 1221, 1235 (1995)]).”

39. It has been repeatedly appreciated by this Court that our F Constitution is one of the most carefully drafted ones, where every situation conceivable, within the vast experience, expertise and knowledge of our framers, was considered, deliberated upon, and appropriate features and text chosen to enable the organs of the State in discharging their roles. While indeed dynamic interpretation is necessary, if the meaning necessary to fit the changed circumstances could be found in the text itself, we would always be better served by treading a path as close as possible to the text, by gathering the plain ordinary meaning, and by sweeping our vision and comprehension across the entire document to see whether that meaning is validated by the constitutional values and scheme.”

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In examining provisions of the Constitution, courts should adopt the primary rule, and give effect to the plain meaning of the expressions; this rule can be departed, only when there are ambiguities. In Kuldip Nayar v. Union of India 102 after quoting from G. Narayanaswami v. G. Panneerselvam103 this court held that “201. … We endorse and reiterate the view taken in the above quoted paragraph of the judgment. It may be desirable to give a broad and generous construction to the constitutional provisions, but while doing so the rule of “plain meaning” or “literal” interpretation, which remains “the primary rule”, has also to be kept in mind. In fact the rule of “literal construction” is the safe rule unless the language used is contradictory, ambiguous, or leads really to absurd results.”

110. Whilst dealing the task of the court, and the permissible extent to which it can resort to internal and extrinsic aids to construction of a statute, this court remarked, in Pushpa Devi v. Milkhi Ram104 that: D “18. It is true when a word has been defined in the interpretation clause, prima facie that definition governs wherever that word is used in the body of the statute unless the context requires otherwise. “The context” as pointed out in the book Cross-Statutory Interpretation (2nd edn. p. 48) “is both internal and external”. The internal context requires the interpreter to situate the disputed words within the section of which they are part and in relation to the rest of the Act. The external context involves determining the meaning from ordinary linguistic usage (including any special technical meanings), from the purpose for which the provision was passed, and from the place of the provisions within the general scheme of statutory and common law rules and principles.

19. The opening sentence in the definition of the section states “unless there is anything repugnant in the subject or context”. In view of this qualification, the court has not only to look at the words but also to examine the context and collocation in the light of the object of the Act and the purpose for which a particular provision was made by the legislature.” 102 (2006) 7 SCC 1. 103 (1972) 3 SCC 717. 104 (1990) 2 SCC 134. H

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A 111. Again, in Karnataka State Financial Corporation. v. N. Narasimahaiah105 it was observed that: “42. Interpretation of a statute would not depend upon a contingency. It has to be interpreted on its own. It is a trite law that the court would ordinarily take recourse to the golden rule of literal interpretation. It is not a case where we are dealing with a defect in the legislative drafting. We cannot presume any. In a case where a court has to weigh between a right of recovery and protection of a right, it would also lean in favour of the person who is going to be deprived therefrom. It would not be the other way round. Only because a speedy remedy is provided for that would itself (sic not) lead to the conclusion that the provisions of the Act have to be extended although the statute does not say so. The object of the Act would be a relevant factor for interpretation only when the language is not clear and when two meanings are possible and not in a case where the plain language leads to only one conclusion.”

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12. In State of W.B. v. Union of India [State of W.B. v. Union A of India, AIR 1963 SC 1241] , Sinha, C.J. observed: (AIR p. 1247, para 13) ‘13. … It is however, well settled that the Statement of Objects and Reasons accompanying a Bill, when introduced in Parliament, cannot be used to determine the true meaning B and effect of substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. But we cannot use this statement as an aid to the construction of the enactment or to show that the legislature did not intend to acquire the proprietary right vested in the C State or in any way to affect the State Governments’ rights as owner of minerals. A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be D used to cut down the generality of the words used in the statute.” ***

25. In the factual scenario before us, having regard to the aforesaid judgment, it is not possible to construe the E Regulation in the light of its object, when the words used are clear. This statement of the law is of course with the well- known caveat that the object of a provision can certainly be used as an extrinsic aid to the interpretation of statutes and subordinate legislation where there is ambiguity in the words F used.”

113. The position in UK is that that the report of a Select Committee may be considered as background to the construction of an Act; however, such reports could not be invested with any kind of interpretive authority. 107 In R. (Baiai) v. Home Secretary, 108 a report of the G Parliamentary Joint Committee on Human Rights was considered. The committee’s opinions on compatibility and other matters of law were

107 See Ryanair Ltd. v. HM Revenue and Customs [2014] EWCA Civ. 410. 108 [2006] EWHC 823 (Admin). H

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A held to have persuasive value, however, they could have no greater weight than, for example, the views of distinguished academic writers. 109 IX Interpretation of the Constitution, the definition clause under Article 366 and Amendments to the Constitution

114. The Court has to interpret provisions of the Constitution, in B this case, introduced through an amendment. The proper method of interpreting such an amendment was indicated by a five-judge bench in Kihoto Hollohan v. Zachillhu110, where it was held that: “26. In expounding the processes of the fundamental law, the Constitution must be treated as a logical whole. Westel C Woodbury Willoughby in The Constitutional Law of the United States (2nd edn., Vol. 1, p. 65) states: “The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts.” *** “28. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment are important criteria. The observations of the U.S. Supreme Court in Maxwell v. Dow [176 US 581 : 44 L Ed 597, 605 (1899)] are worthy of note: (L Ed p. 605) “… to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then to construe it, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted ….”

115. Recollecting these principles, this court is mindful of the first circumstance that the 102ndAmendment brought in an entirely new dimension - an attempt to identify backward classes, firstly by inserting Sub-Article (26C) into the definition clause under Article 366. This insertion, in the opinion of the court, accords with the statutory scheme 109 Also see Craies on Statutory Interpretation, Eleventh Edition(Sweet & Maxwell) 2017 Chap. 27 @ para 27.1.13.1, page 952 110 H 1992 Supp (2) SCC 651

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of defining terms for the purposes of the Constitution. This term “for A the purposes of this Constitution” occurs twelve times111 in the Constitution.

116. The interpretation of the definition in relation to the Constitution, is truly indicative that for the purpose of the entire constitution, the meaning ascribed in the definition clause – in this case, by Article 366 B (26C), has to prevail. While interpreting whether members of SCs/ STs who communities find mention in the Presidential notification in two states, could claim reservation benefits in both states, this court had occasion to consider a parimateria provision, i.e. Articles 366 (24) and (25) which defined SCs “for the purposes of this constitution”. In Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College112, a Constitution C Bench of this Court held as follows: “12. It is, however, necessary to give proper meaning to the expressions ‘for the purposes of this Constitution’ and ‘in relation to that State’ appearing in Articles 341 and 342 of the Constitution.” D

This court then noticed the divergent views of the High Courts and then observed: “13. It is trite knowledge that the statutory and constitutional provisions should be interpreted broadly and harmoniously. E It is trite saying that where there is conflict between two provisions, these should be so interpreted as to give effect to both. Nothing is surplus in a Constitution and no part should be made nugatory. This is well settled. See the observations of this Court in Venkataramana Devaru v. State of Mysore [1958 SCR 895, 918 : AIR 1958 SC 255] , where F Venkatarama Aiyer, J. reiterated that the rule of construction is well settled and where there are in an enactment two provisions which cannot be reconciled with each other, these should be so interpreted that, if possible, effect could be given to both. It, however, appears to us that the expression ‘for the G purposes of this Constitution’ in Article 341 as well as in Article 342 do imply that the Scheduled Caste and the Scheduled Tribes so specified would be entitled to enjoy all the 111 Articles 108 (4); 299 (2); 341(1); 342 (1); 342A (1); 366 (14); 366 (24); 366 (25); 366 (26C) and 367 (3) 112 1990 SCC (3) 130. H

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A constitutional rights that are enjoyable by all the citizens as such. Constitutional right, e.g., it has been argued that right to migration or right to move from one part to another is a right given to all — to Scheduled Castes or Tribes and to non-scheduled castes or tribes. But when a Scheduled Caste or Tribe migrates, there is no inhibition in migrating but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original State specified for that State or area or part thereof. If that right is not given in the migrated State it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession. Neither Article 14, 16, 19 nor Article 21 is denuded by migration but he must enjoy those rights in accordance with the law if they are otherwise followed in the place where he migrates. There should be harmonious construction, harmonious in the sense that both parts or all parts of a constitutional provision should be so read that one part does not become nugatory to the other or denuded to the other but all parts must be read in the context in which these are used. It was contended that the only way in which the fundamental rights of the petitioner under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) could be given effect to is by construing Article 342 in a manner by which a member of a Scheduled Tribe gets the benefit of that status for the purposes of the Constitution throughout the territory of India. It was submitted that the words “for the purposes of this Constitution” must be given full effect. There is no dispute about that. The words “for the purposes of this F Constitution” must mean that a Scheduled Caste so designated must have right under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable to him in his area where he migrates or where he goes. The expression “in relation to that State” would become nugatory if in all States G the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. In Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. H

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In Maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a young boy or a child and goes in a completely different atmosphere or Maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which will denude the children or the people of Maharashtra belonging to any segment of that State who may still require that protection. After all, it has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution.

14. Our attention was drawn to certain observations in Elizabeth Warburton v. James Loveland [1832 HL 499] . It is true that all provisions should be read harmoniously. It is also true that no provision should be so read as to make other provisions nugatory or restricted. But having regard to the purpose, it appears to us that harmonious construction enjoins that we should give to each expression —”in relation to that State” or “for the purposes of this Constitution” — its full meaning and give their full effect. This must be so construed that one must not negate the other. The construction that reservation made in respect of the Scheduled Caste or Tribe of that State is so determined to be entitled to all the privileges and rights under the Constitution in that State would be the most correct way of reading, consistent with the language, purpose and scheme of the Constitution. Otherwise, one has to bear in mind that if reservations to those who are treated as Scheduled Caste or Tribe in Andhra Pradesh are also given to a boy or a girl who migrates and gets deducted (sic inducted) in the State of Maharashtra or other States where that caste or tribe is not treated as Scheduled Caste or Scheduled Tribe then either reservation will have the effect H

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A of depriving the percentage to the member of that caste or tribe in Maharashtra who would be entitled to protection or it would denude the other non-Scheduled Castes or non- Scheduled Tribes in Maharashtra to the proportion that they are entitled to. This cannot be logical or correct result designed by the Constitution.” B (emphasis supplied)

117. This Constitution Bench decision was followed in another decision, again by five judges in Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra & Anr v. Union of C India & Anr.113, when this court reiterated its previous view in Marri (supra) and observed further as follows: “16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a D given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State “for the purposes of this Constitution”. This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution.”

118. The recent judgment in Bir Singh v. Delhi Jal Board (supra) reiterated the previous two Constitution Bench judgments. It is useful to 113 H (1994) 5 SCC 244.

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notice the partly concurring judgment of Bhanumati, J. who observed that “80. Clause (24) of Article 366 defines “Scheduled Castes” and clause (25) of Article 366 defines “Scheduled Tribes”. The latter means “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be “Scheduled Tribes” for the purposes of this Constitution”.

81. Article 341(1) of the Constitution empowers the President, in consultation with the Governor of the State concerned, to specify Scheduled Castes by public notification. Equally, Article 342(1) of the Constitution empowers the President “with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be “Scheduled Tribes” in relation to that State or Union Territory, as the case may be”. Article 342(2) of the Constitution empowers E “Parliament, by law, to include in or exclude from the list of “Scheduled Tribes” specified in a notification issued under clause (1), any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” Until the Presidential Notification is modified by appropriate amendment by Parliament in exercise of the power under Article 341(2) of the Constitution, the Presidential Notification issued under Article 341(1) is final and conclusive and any caste or group cannot be added to it or subtracted by any action either by the State Government or by a court on adducing of evidence. In other words, it is the constitutional mandate that the tribes or tribal communities or parts of or groups within such tribes or tribal communities specified by H

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A the President, after consultation with the Governor in the public notification, will be “Scheduled Tribes” subject to the law made by Parliament alone, which may, by law, include in or exclude from the list of “Scheduled Tribes” specified by the President. Thereafter, it cannot be varied except by law made by Parliament. B

82. The President of India alone is competent or authorised to issue an appropriate notification in terms of Articles 341(1) and 342(1). Cumulative reading of Articles 338, 341 and 342 indicate that: C (a) Only the President could notify castes/tribes as Scheduled Castes/Tribes and also indicate conditions attaching to such declaration. A public notification by the President specifying the particular castes or tribes as SC/ST shall be final for the purpose of Constitution and shall be exhaustive.

D (b) Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under clause (1), shall not be varied by any subsequent notification [ Ref. Action Committee on Issue of Caste Certificate to SCs/STs in State of Maharashtra v. Union of India, (1994) 5 SCC 244] .”

119. These three Constitution Bench judgments, Marri (supra), Action Committee (supra) and Bir Singh (supra) therefore, have set the tone as it were, for the manner in which determination by the President is to be interpreted, having regard to the definition clause in Article 366, which has to apply for interpreting the particular expression in a consistent manner, for the purpose of the Constitution. Thus, the expression SCs in relation to a State for the “purpose of this Constitution”, means the member of a SC declared to be so under the Presidential Notification. G The terms of such Presidential Notification insist that such a citizen ought to be a resident of that concerned State or Union Territory. This aspect is of some importance, given that there are a large number of communities which are common in several States. However, the decisions of this Court are uniform since Marri (supra) stated that it is only the H citizens residing in a particular state who can claim the benefit of

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reservation – either of that State or of the Centre for the purposes of the A Constitution in relation to that State. Necessarily, therefore, the resident of State A is entitled to claim reservation benefits under Articles 15(4) and 16(4) if he or she resides (the residential qualification that needs to be fulfilled is that specified by the concerned State) in that State, (i.e. A) and none else. As a sequitur, if such a person or community or caste (of state A) is also described as a Scheduled Caste in State B, for the purposes of State services or admission to State institutions, he cannot claim the benefits of reservation as a scheduled caste in such B State. However, Bir Singh (supra) has made it clear that for the purposes of Union employment and admissions to Union institutions the position is different because SCs living within the territory of India in relation to one State or the other, are deemed to be SCs or STs for the purposes of this Constitution in relation for the purposes of Union employment.

120. The interpretation of Articles 341 and 342 of the Constitution, read with Articles 366 (24) and 366 (25), have to, in our opinion, be the guiding factors in interpreting Article 366 (26C), which follows a similar pattern, i.e. of defining, for the purpose of the entire constitution, with reference to the determination of those communities who are notified as SEBCs, under Article 342A (which again uses the expression “for the purpose of this constitution”).

121. Quite similarly, when Article 366 was amended by the Forty Sixth amendment Act, and Article 366(29A) was introduced to Article E 366, this Court considered the previous amendments, which are the 6thAmendment to the Constitution and the 46 thAmendment which amended Article 269 and Article 286, besides introducing Entry 92A to the Union List. The Court went on to hold in a five-judge bench decision in 20th Century Finance Corpn. Ltd. v. State of Maharashtra 114, that the interpretation adopted by this Court led to the inexorable conclusion that a limitation was placed upon the States’ power of taxation. Article 366(29A) on the one hand, expanded the specie of sale which could be the legitimate subject of taxation by the State, but at the same time, on the other hand, the amendment also introduced limitations upon the State power which was subjected to controls by Parliament. Therefore, in the context of the amendment the expression”sale” underwent alteration, partly allowing and partly restricting states’ power to tax goods. This court, after recounting the history of the previous litigation, held that:

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A “19. Following the decisions referred to above, we are of the view that the power of State Legislatures to enact law to levy tax on the transfer of right to use any goods under Entry 54 of List II of the Seventh Schedule has two limitations — one arising out of the entry itself; which is subject to Entry 92-A of List I, and the other flowing from the restrictions embodied B in Article 286. By virtue of Entry 92-A of List I, Parliament has power to legislate in regard to taxes on sales or purchase of goods other than newspapers where such sale or purchase takes place in the course of inter-State trade or commerce. Article 269 provides for levy and collection of such taxes. C Because of these restrictions, State Legislatures are not competent to enact law imposing tax on the transactions of transfer of right to use any goods which take place in the course of inter-State trade or commerce. Further, by virtue of clause (1) of Article 286, the State Legislature is precluded from making law imposing tax on the transactions of transfer of right to use any goods where such deemed sales take place (a) outside the State; and (b) in the course of import of goods into the territory of India. Yet, there are other limitations on the taxing power of the State Legislature by virtue of clause (3) of Article 286. Although Parliament has enacted law under clause (3)(a) of Article 286 but no law so far has been enacted by Parliament under clause (3)(b) of Article 286. When such law is enacted by Parliament, the State Legislature would be required to exercise its legislative power in conformity with such law. Thus, what we have stated above, are the limitations on the powers of State Legislatures on levy of sales tax on deemed sales envisaged under sub-clause (d) of clause (29- A) of Article 366 of the Constitution.”

122. In a similar manner, the expression, “unless the context otherwise provides”[which is the controlling expression in Article 366(1)] was interpreted by an earlier Constitution Bench in Builders’ Association G of India v. Union of India115 when the amendment to Article 366 was considered: “32. Before proceeding further, it is necessary to understand what sub-clause (b) of clause (29-A) of Article 366 of the 115 H (1989) 2 SCC 645

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Constitution means. Article 366 is the definition clause of the A Constitution. It says that in the Constitution unless the context otherwise requires, the expressions defined in that article have the meanings respectively assigned to them in that article. The expression ‘goods’ is defined in clause (12) of Article 366 of the Constitution as including all materials, commodities B and articles.” After discussing the previous decisions in respect of the unamended provisions, the court stated that: “The emphasis is on the transfer of property in goods (whether as goods or in some other form). The latter part of clause C (29-A) of Article 366 of the Constitution makes the position very clear. While referring to the transfer, delivery or supply of any goods that takes place as per sub-clauses (a) to (f) of clause (29-A), the latter part of clause (29-A) says that “such transfer, delivery or supply of any goods” shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. Hence, a transfer of property in goods under sub-clause (b) of clause (29-A) is deemed to be a sale of the goods involved in the execution of a works contract by the person making the transfer and a purchase of those goods by the person to whom such transfer is made. The object of the new definition introduced in clause (29-A) of Article 366 of the Constitution is, therefore, to enlarge the scope of ‘tax on sale or purchase of goods’ wherever it occurs in the Constitution so that it may include within its scope the transfer, delivery or supply of goods that may take place under any of the transactions referred to in sub-clauses (a) to (f) thereof wherever such transfer, delivery or supply becomes subject to levy of sales tax. So construed the expression ‘tax on the sale or purchase of goods’ in Entry 54 of the State List, therefore, includes a G tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract also. The tax leviable by virtue of sub-clause (b) of clause (29-A) of Article 366 of the Constitution thus becomes subject to the same discipline to which any levy under entry H

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