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

A 54 of the State List is made subject to under the Constitution. The position is the same when we look at Article 286 of the Constitution. Clause (1) of Article 286 says that no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place — (a) outside the State; or (b) in the course of the import of the goods into, or export of the goods out of, the territory of India. Here again we have to read the expression “a tax on the sale or purchase of goods” found in Article 286 as including the transfer of goods referred to in sub-clause (b) of clause (29-A) of Article 366 which is deemed to be a sale of goods and the tax leviable thereon would be subject to the terms of clause (1) of Article 286. Similarly the restrictions mentioned in clause (2) of Article 286 of the Constitution which says that Parliament may by law formulate principles for determining when a sale or purchase of goods takes place in any of the ways mentioned in clause (1) of D Article 286 would also be attracted to a transfer of goods contemplated under Article 366(29-A)(b). Similarly clause (3) of Article 286 is also applicable to a tax on a transfer of property referred to in sub-clause (b) of clause (29-A) of Article

366. Clause (3) of Article 286 consists of two parts. Sub- E clause (a) of clause (3) of Article 286 deals with a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce, which is generally applicable to all sales including the transfer, supply or delivery of goods which are deemed to be sales under clause (29-A) of Article 366 of the Constitution. F If any declared goods which are referred to in Section 14 of the Central Sales Tax Act, 1956 are involved in such transfer, supply or delivery, which is referred to in clause (29-A) of Article 366, the sales tax law of a State which provides for levy of sales tax thereon will have to comply with the restrictions mentioned in Section 15 of the Central Sales Tax Act, 1956. …. We are of the view that all transfers, deliveries and supplies of goods referred to in clauses (a) to (f) of clause (29-A) of Article 366 of the Constitution are subject to the restrictions and conditions mentioned in clause (1), clause (2) and sub-

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clause (a) of clause (3) of Article 286 of the Constitution and A the transfers and deliveries that take place under sub-clauses (b), (c) and (d) of clause (29-A) of Article 366 of the Constitution are subject to an additional restriction mentioned in sub-clause (b) of Article 286(3) of the Constitution.”

123. In Commissioner of Income Tax v. Willamson Financial B Services116, this court had to interpret “agricultural income”, a term defined in Article 366(1) as follows: “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— C (1) ‘agricultural income’ means agricultural income as defined for the purposes of the enactments relating to Indian income tax;”

124. Noticing that the definition (Article 366 (1) (1)) itself referred to the term as defined by the Income tax Act, and after considering the definition in the existing enactment, this court held that: D “30. The expression “agricultural income”, for the purpose of abovementioned entries, means agricultural income as defined for the purpose of the enactments relating to Indian income tax vide Article 366(1) of the Constitution. Therefore, the definition of “agricultural income” in Article 366(1) E indicates that it is open to the income tax enactments in force from time to time to define “agricultural income” in any particular manner and that would be the meaning not only for tax enactments but also for the Constitution. This mechanism has been devised to avoid a conflict with the legislative power of States in respect of agricultural income.” F

125. Another important decision is Tata Consultancy Services v. State of A.P.117 The issue involved was interpretation of the expression in Article 366(12), i.e. “goods” which reads as follows: “(12) “goods” includes all materials, commodities, and articles”. G

126. This court expansively interpreted the definition and held that the it includes software programmes, observing that the term “goods” included intangible property: 116 (2008) 2 SCC 202. 117 (2005) 1 SCC 308. H

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A “27. In our view, the term “goods” as used in Article 366(12) of the Constitution and as defined under the said Act is very wide and includes all types of movable properties, whether those properties be tangible or intangible. We are in complete agreement with the observations made by this Court in Associated Cement Companies Ltd. [(2001) 4 SCC 593] A B software program may consist of various commands which enable the computer to perform a designated task. The copyright in that program may remain with the originator of the program. But the moment copies are made and marketed, it becomes goods, which are susceptible to sales tax. Even C intellectual property, once it is put on to a media, whether it be in the form of books or canvas (in case of painting) or computer discs or cassettes, and marketed would become “goods”. …… The term “all materials, articles and commodities” includes both tangible and intangible/ incorporeal property which is capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored, possessed, etc. The software programs have all these attributes.”

127. It is therefore, apparent that whenever the definition clause, i.e. Article 366 has arisen for interpretation, this court has consistently given effect to the express terms, and in the broadest manner. Whenever new definitions were introduced, full effect was given, to the plain and grammatical terms, often, limiting existing legislative powers conferred upon the states.

128. Before proceeding to examine whether the term “the Central F List” in Article 342A indicates an expression to the contrary, [per Article 366 (1)] it is also necessary to consider some decisions that have interpreted amendments which introduced entirely new provisions, either affecting state’s legislative powers, or limiting fundamental rights.

129. In Bimolangshu Roy v. State of Assam 118 the state’s G legislative competence to enact a law providing for appointment of Parliamentary Secretaries, in the context of provisions of the Constitution (Ninety-First Amendment) Bill, 2003 which was passed by both the Houses of Parliament and after receiving the assent of the President, became a provision of the Constitution. It introduced Article 164(1-A), 118 H (2018) 14 SCC 408

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which had the effect of limiting the total number of Ministers in the A Council of Ministers in a State, including the Chief Minister, to fifteen per cent of the total number of members of the Legislative Assembly of that State; the minimum number of ministers was to be 12. The state assembly sought to create offices that had the effect of exceeding the number mandated (15%). Upon a challenge, it was argued that the state had legislative competence to enact the law, by virtue of Article 194. That argument was repelled by this court, which held: “36. As rightly pointed out by the petitioners, the existence of a dedicated article in the Constitution authorising the making of law on a particular topic would certainly eliminate the possibility of the existence of the legislative authority to legislate in Article 246 read with any entry in the Seventh Schedule indicating a field of legislation which appears to be closely associated with the topic dealt with by the dedicated article. For example, even if the Constitution were not to contain Entries 38, 39, 40 in List II the State Legislatures D would still be competent to make laws w.r.t. the topics indicated in those three entries, because of the authority contained in Articles 164(5), 186, 194, 195, etc. Therefore, to place a construction on those entries which would have the effect of enabling the legislative body concerned to make a law not within the contemplation of the said articles would be plainly E repugnant to the scheme of the Constitution.” *** “39. The distinction between the scheme of Article 262 Entry 56 of List I and Entry 17 of List II and the scheme of Article F 194 and Entry 39 of List II is this that in the case of inter- State water disputes neither of the abovementioned two entries make any mention of the adjudication of water disputes and only Article 262 deals with the topic. In the case on hand, the relevant portion of the text of Article 194(3) and Entry 39 of List II are almost identical and speak about the “powers, G privileges and immunities” of the House, its Members and committees.

40. The question therefore is — Whether the text of Article 194(3) and Entry 39 is wide enough to authorise the legislature to make the Act? H

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A 41. In view of the fact that the text of both Article 194(3) and the relevant portion of Entry 39 are substantially similar, the meaning of the clause “the powers, privileges and the immunities of a House of the legislature of a State … and of the Members of a House of such legislature” must be examined.” B *** “43. Article 194 deals exclusively with the powers and privileges of the legislature, its Members and committees thereof. While clause (1) declares that there shall be freedom of speech in the legislature subject to the limitations C enumerated therein, clause (2) provides immunity in favour of the Members of the legislature from any legal proceedings in any court for anything said or any vote given by such Members in the legislature or any committees, etc. Clause (3) deals with the powers, privileges and immunities of a House D of the Legislature and its Members with respect to matters other than the ones covered under clauses (1) and (2).

44. Thus, it can be seen from the scheme of Article 194 that it does not expressly authorise the State Legislature to create offices such as the one in question. On the other hand, Article E 178 speaks about the offices of Speaker and Deputy Speaker. Article 179 deals with the vacation of those offices or resignations of incumbents of those offices whereas Articles 182 and 183 deal with the Chairman and Deputy Chairman of the Legislative Council wherever the Council exists. In our opinion, the most crucial article in this Chapter is Article 187 F which makes stipulations even with reference to the secretarial staff of the legislature. On the face of such elaborate and explicit constitutional arrangement with respect to the legislature and the various offices connected with the legislature and matters incidental to them to read the authority to create new offices by legislation would be a wholly G irrational way of construing the scope of Article 194(3) and Entry 39 of List II. Such a construction would be enabling the legislature to make a law which has no rational connection with the subject-matter of the entry. “The powers, privileges and immunities” contemplated by Article 194(3) and Entry H 39 are those of the legislators qua legislators.”

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130. In Ashoka Kumar Thakur v. Union of India119 the issue which arose for consideration was the correct interpretation of Article 15(5)(extracted below in a footnote)120, introduced by virtue of the Constitution (Ninety Third Amendment) Act, 2005. It enabled the state to make special provisions for the advancement of any SEBCs or for SCs or STs as far as they related to “their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30”. This court held that on a true construction, special provisions for admission to such category of candidates, even in private educational institutions, was permissible. The court inter alia, held that: C “125. Both Articles 15(4) and 15(5) are enabling provisions. Article 15(4) was introduced when the “Communal G.O.” in the State of Madras was struck down by this Court in Champakam Dorairajan case [1951 SCR 525] . In Unni Krishnan [(1993) 1 SCC 645] this Court held that Article D 19(1)(g) is not attracted for establishing and running educational institutions. However, in T.M.A. Pai Foundation case [(2002) 8 SCC 481] it was held that the right to establish and run educational institutions is an occupation within the meaning of Article 19(1)(g). The scope of the decision in T.M.A. Pai Foundation case [(2002) 8 SCC 481] was later E explained in P.A. Inamdar case [(2005) 6 SCC 537] . It was held that as regards unaided institutions, the State has no control and such institutions are free to admit students of their own choice. The said decision necessitated the enactment of the Constitution (Ninety-third Amendment) Act, 2005. Thus, F both Articles 15(4) and 15(5) operate in different areas. The “nothing in this article” [mentioned at the beginning of Article 15(5)] would only mean that the nothing in this article which prohibits the State on grounds which are mentioned in Article 119 (2008) 6 SCC 1. 120 [(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent G the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.] H

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A 15(1) alone be given importance. Article 15(5) does not exclude Article 15(4) of the Constitution.

126. It is a well-settled principle of constitutional interpretation that while interpreting the provisions of the Constitution, effect shall be given to all the provisions of the Constitution and no B provision shall be interpreted in a manner as to make any other provision in the Constitution inoperative or otiose. If the intention of Parliament was to exclude Article 15(4), they could have very well deleted Article 15(4) of the Constitution. Minority institutions are also entitled to the exercise of fundamental rights under Article 19(1)(g) of the Constitution, C whether they be aided or unaided. But in the case of Article 15(5), the minority educational institutions, whether aided or unaided, are excluded from the purview of Article 15(5) of the Constitution. Both, being enabling provisions, would operate in their own field and the validity of any legislation made on the basis of Article 15(4) or 15(5) has to be examined on the basis of provisions contained in such legislation or the special provision that may be made under Article 15(4) or 15(5)….”

131. The Court, similarly, gave full effect to the definition clause in Article 366 [in the definition of Union territory, under Article 366(30)] while examining the soundness of the argument that immunity from intergovernmental taxation (i.e., under Article 289 which exempts states from Union taxation), extends to Union Territories and municipalities. It was argued that in many cases, the Union Territories had Legislative Assemblies, by statutory enactments, or special provisions, and in the case of municipalities, the Constitution had, through amendment, and introduction of Article 243X, authorized states to authorize municipal levies. The court repelled this argument, in New Delhi Municipal Council v. State of Punjab121 in a nine-judge ruling, stating as follows: “53. Before dealing with the specific circumstances of, and the decision in, each of these cases, it is necessary that a few provisions which figure prominently be dealt with. Article 246(4) of the Constitution, as it stood on 26-1-1950, allowed Parliament to “make laws with respect to any matter for any part of the territory of India not included in Part A or Part B 121 H (1997) 7 SCC 339at page 370.

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of the First Schedule”. The Seventh Amendment Act brought A about a number of changes affecting Union Territories, some of which have already been noticed by us. The other changes brought about by it are also relevant; it caused Article 246 to be changed to its present form where Parliament is empowered to make laws with respect to “any part of the territory of B India not included in a State”. The word “State” has not been defined in the Constitution. Article 1(3) defines the territory of India as comprising: (a) the territories of the States; (b) the Union Territories specified in the First Schedule; and (c) such other territories as may be acquired. The word “Union Territory” has been defined in Article 366(30) to mean “any C Union Territory specified in the First Schedule and includes any other territory comprised within the territory of India but not specified in that Schedule

54. Though not defined in the Constitution, the word “State” has been defined in the General Clauses Act, 1897 (hereinafter called “the General Clauses Act”). Article 367 of the Constitution states that the General Clauses Act, 1897 shall, unless the context otherwise requires and subject to any adaptations and modifications made under Article 372, apply for the interpretation of the Constitution. Therefore, on a plain reading of the provisions involved, it would appear that the definition of “State” in the General Clauses Act would be applicable for the purposes of interpreting the Constitution. Article 372 is the saving clause of the Constitution which enables all laws in force before the commencement of the Constitution to continue in the territory of India. Article 372- F A, which, once again, owes its origin to the Seventh Amendment Act, empowers the President to make further adaptations in particular situations. *********** “99. It is, therefore, clear that even under the new scheme, G Municipalities do not have an independent power to levy taxes. Although they can now be granted more substantial powers than ever before, they continue to be dependent upon their parent legislatures for the bestowal of such privileges. In the case of Municipalities within States, they have to be H

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A specifically delegated the power to tax by the State Legislature concerned. In Union Territories which do not have Legislative Assemblies of their own, such a power would have to be delegated by Parliament. Of the rest, those which have Legislative Assemblies of their own would have to specifically empower Municipalities within them with the power to levy taxes.

100. We have already held that despite the fact that certain Union Territories have Legislative Assemblies of their own, they are very much under the supervision of the Union Government and cannot be said to have an independent status. Under our constitutional scheme, all taxation must fall within either of two categories: State taxation or Union taxation. Since it is axiomatic that taxes levied by authorities within a State would amount to State taxation, it would appear that the words “or by any authority within a State” have been added in Article 285(1) by way of abundant caution. It could also be that these words owe their presence in the provision to historical reasons; it may be noted that Section 154 of the 1935 Act was similarly worded. The fact that Article 289(1), which in its phraseology is different from Section 155 of the 1935 Act having been drafted by the Drafting Committee to meet specific objections, does not contain words similar to those in Article 285(1), will not in any way further the case of the appellant, because the phrase “Union taxation” will encompass municipal taxes levied by Municipalities in Union Territories.” F It is noteworthy that the court was inter alia, guided by the definition of “State” in Article 367 of the Constitution of India. X. Interpreting provisions of the 102nd Amendment- Article 366 (26C), 338B and 342A

G 132. What is noticeable in the lines of decisions preceding this section, including those dealing with constitutional amendments- is that whenever the definition clause (Article 366) arose for consideration, the court gave full effect to the substantive amendments as well as the definition (as in the case of Builders Association [supra] and Twentieth Century Leasing [supra]), as well as the newly introduced provisions H

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(as in the case of Bimolangshu Roy [supra] and Ashoka Kumar Thakur A [supra]). In Williamson Financial Services (supra)and New Delhi Municipal Council (supra), this court gave full effect to the plain meaning of the definition clause, in Article 366 (1) (1) and (30) respectively.

133. In this background, the crucial point to be decided is - did B Parliament, acting in its constituent capacity, whereby any amendment needed a special majority of two thirds of its members present and voting, in both the Houses separately, wish to bring about a change in status quo or not?

134. Parliament was aware that the procedure for identification C of SCs and STs, culminated with the final decision by the President on the aid and advice of the Union Council of Ministers. This position in law underwent little change, despite the Constitution (Sixty Fifth) and Constitution (Eighty Ninth)Amendment Acts, which set up commissions for SCs and STs, replacing the provisions of the original constitution which had created an authority called the “Special Officer”. Through D the amended Articles 338 and 338A, consultation with the states in the matter of inclusion or exclusion, was and continues to be given due consideration. It is also possible for states to initiate the process and propose the inclusion (or deletion of) new communities or castes, by sending their proposals, duly supported by relevant material, for consideration. This constitutional procedure, so to say, culminating in the final word of Parliament was well known, in relation to SCs and STs. The states were, and are, bound to consult these two commissions, for SCs and STs (under Articles 338 and 338A).Till the 102nd Amendment, when it came to backward classes, or SEBCs, the Constitution was silent- definitionally, as well as the manner by which their identification could take place.

135. The interpretive exercise carried out in Indra Sawhney saw this court enjoining the Central and State governments to set up some permanent mechanisms in the form of commissions, to identify SEBCs through a systematic and scientific manner and carry on regular periodic reviews. The respondent states emphasize that pursuant to this direction, state enactments were framed and brought into force. The arguments on their behalf as well as the Attorney General was that given these directions by a nine-judge bench, it could not be inferred that the 102 nd Amendment was ever intended to bring about such a drastic change as H

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136. It is correct that Indra Sawhney clearly voiced the need for the Central Government and the states to take measures for setting up permanent commissions or bodies, if need be through legislation, to carry out the task of identification of communities as SEBCs for the purposes of Articles 15 and 16. However, that articulation or even direction, could not have, in the opinion of this court, been an injunction never to depart from the existing mechanisms of setting standards for identification of such classes, nor was it to be a direction in perpetuity, that status quo remain forever. It cannot be seriously assumed that if Parliament were so minded, it cannot bring about changes at all to the Constitution, in regard to how identification of backward classes is to take place. The existence of the provision in Article 368, enabling amendments, and the inapplicability of the proviso to Article 368(2) in relation to the kind of changes to the Constitution, brought about by introduction of Articles 366 (26C), Article 338B and Article 342A, negates this argument.

137. A reading of the Select Committee’s Report (in relation to the 102nd Amendment) bears out that various changes to the proposed amendments were suggested on the ground that on a fair and reasonable interpretation of its terms, State’s powers to make reservations could be impacted. The Central Government’s representatives and officials assured that the State’s role in the process of backward class identification and listing, would be maintained. None of the amendments proposed, expressly preserving the state power, were accepted. The dissenting members were aware that a fair and reasonable interpretation of the terms of the amendment clearly ousted the State’s powers to identify backward classes of citizens. This emerges on a reading of a note by Shri Sukhendu Shekhar Roy, a Member of Parliament who relied on extracts of the judgment in Indra Sawhney and observed that the amendments prescribed “for the unitary authority which in effect shall encroach upon the jurisdiction of the States in the matter of identifying and specifying the socially and educationally backward classes”. Three Members, Shri Digvijaya Singh, Shri B.K. Hariprasad, and Shri Hussain Dalwai, submitted a joint note of dissent which dealt with the powers of the commission under Article 342A, and also suggested changes in its composition. Shri Sharad Yadav, another Member of H

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Parliament, was of the view that there was no need of any inclusion or exclusion of the castes and approval thereof should not be left to the Governor, Parliament and President as it will be a step backward. Dr.Dalip Kumar Tirkey, Member of the Rajya Sabha, proposed sub-articles (3) and (4) to Article 342A, enabling the State to publish a list which could be modified by State Assemblies. Ms. Kanimozhi in her long letter of dissent, also highlighted the effect of a proposed amendment and insertion of Article 342A which had the effect of ousting the states’ power, which they had hitherto exercised to identify SEBCs.

138. The debates in Parliament also witnessed members voicing apprehensions that the power hitherto enjoyed by the states, would be whittled down drastically. These fears were allayed by the concerned C Minister who piloted the Bill before both Houses of Parliament. Extracts of these statements have been set out in extenso in the judgment of Ashok Bhushan, J.; they are not reproduced here, for the sake of brevity.

139. These materials show that there was on the one hand, an assumption that the changes ushered by the amendments would not disturb any part of states’ powers; however, a sizeable number- 8 members, after a careful reading of the terms of the amendment, dissented, saying that state power would be adversely impacted. In these circumstances, the debate which ensued at the time of passing of the Bill into the 102 nd Amendment was by way of an assurance by the Minister concerned that the existing power of the states would not be affected. To the same effect, are debates on the floor of the Houses of Parliament. Given all these circumstances, it is difficult to accept the contention that the Select Committee’s Report, to the extent it holds out an assurance, should be used as a determinative external aid for interpretation of the actual terms of the 102nd Amendment. Likewise, debates and statements cannot be conclusive about the terms of the changes brought about by an amendment to the Constitution. The duty of the court always is to first interpret the text, and only if there is ambiguity in the meaning, to resort first to internal aids, before seeking external aids outside the text.

140. It would be useful to recollect that this Court had, through a G seven-judge bench, held that the words of the statute are to be construed on their own terms and that the task of interpretation should not be determined by statements made by Ministers and Members of Parliament. In Sanjeev Coke Manufacturing (supra) it was held that: H

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A “No one may speak for the Parliament and Parliament is never before the Court. After Parliament has said what it intends to say, only the Court may say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Court’s is the only authentic voice which may echo (interpret) the Parliament. This the court will do with reference to the B language of the statute and other permissible aids.”

141. This aspect was highlighted somewhat more vividly in a recent decision of this Court in Shivraj Singh Chauhan v. Speaker, Madhya Pradesh Legislative Assembly122, where it was held that: C “In interpreting the Constitution, it would be not be correct to rely on the speeches Constituent Assembly of India, Volume VIII (debate of 1 June 1949) made by individual members of the Constituent Assembly. Each speech represents the view of one individual in the Assembly which taken as a whole formed a kaleidoscope of competing political ideologies. There may D arise instances where the court is of the independent opinion that the views raised by individual Members of the Constituent Assembly in their speeches lay down considerations that warrant examination and approval by the Court. The general rule however, would be to examine the decisions taken by E Constituent Assembly taken by majority vote. The votes of the Constituent Assembly represent equally the views of all the members of the Assembly and are the final and dispositive expressions of the constitutional choices taken in framing our Constitution.”

F 142. The use of external aids such as speeches and parliamentary reports was commented upon earlier, rather strongly, by Sabyasachi Mukherjee, CJ in the decision reported as DTC Mazdoor Congress v. Delhi Transport Corporation: 123 “Construction or interpretation of legislative or rule provisions G proceeds on the assumption that courts must seek to discover and translate the intention of the legislature or the rule-making body. This is one of the legal fictions upon the hypothesis of which the framework of adjudication of the intention of a

122 2020 SCC Online SC 363 123 H 1990 SCR Supp. (1) 142

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piece of legislation or rule proceeds. But these are fictional myths to a large extent as experience should tell us. In most of the cases legislature, that is to say, vast majority of the people who are supposed to represent the views and opinions of the people, do not have any intention, even if they have, they cannot and do not articulate those intentions. On most of these issues their is no comprehension or understanding. Reality would reveal that it is only those who are able to exert their view- points, in a common parliamentary jargon, the power lobby, gets what it wants, and the machinery is of a bureaucratic set up who draft the legislation or rule or law. So, there- fore, what is passed on very often as the will of the people in a particular enactment is the handy work of a bureaucratic machine produced at the behest of a power lobby control- ling the corridors of power in a particular situation. This takes the mythical shape of the ‘intention of the people’ in the form of legislation. Again, very often, the bureaucratic machine is not able to correctly and properly transmute what was intended to be conveyed. In such a situation, is it or is it not better, one would ponder to ask, whether the courts should attribute to the law-making body the knowledge of the values and limitations of the Constitution, and knowledge of the evils that should be remedied at a particular time and in a situation that should be met by a particular piece of legislation, and the court with the experience and knowledge of law, with the assistance of lawyers trained in this behalf, should endeavour to find out what will be the correct and appropriate solution, and construe the rule of the legislation within the ambit of constitutional limitations and upon reasonable judgment of what should have been expressed. In reality, that happens in most of the cases. Can it be condemned as judicial usurpation of law-making functions of the legislature thereby depriving the people of their right to express their will? This is a practical dilemma which Judges must always, in cases of interpretation and construction, face and a question which they must answer.”

143. The polyvocality of parliamentary proceedings where the views expressed by Ministers or Parliamentarians may not be common or unanimous and the danger of attributing a particular intention to the H

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A terms of a statute, through the words of a Minister or other functionary which may be at odds with the plain words, cannot be lost sight of.

144. In the decision reported as BBC Enterprises v.Hi-Tech Xtravision Ltd.,124 the court cautioned against the use of the purposive interpretation rule, saying that B “the courts should now be very reluctant to hold that Parliament has achieved nothing by the language it used, when it is tolerably plain what Parliament wished to achieve.”

145. This caution was accepted in Balram Kumawat v. Union of India 125 where it was held as follows: C “26. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used.[See Salmon v. Duncombe [Salmon v. Duncombe, (1886) LR 11 AC 627 (PC)] (AC at p. 634).] Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result. The courts, when rule of purposive construction is gaining momentum, should be very reluctant to hold that Parliament has achieved nothing by the language it used when it is tolerably plain what it seeks to achieve. [See B.B.C. Enterprises Ltd. v. Hi-Tech Xtravision Ltd. [B.B.C. Enterprises Ltd. v. Hi-Tech Xtravision Ltd., (1990) 2 All ER 118 : 1990 Ch 609 : (1990) 2 WLR 1123 (CA)] (All ER at pp. 122-23).]” F

146. Taking into consideration the amendment to Section 123 of the Representation of People’s Act, which introduced a new corrupt practice, i.e. the candidate making an appeal on the basis of his religion or caste, this court took the aid of the doctrine of purposive construction, in Abhiram Singh v. C.D. Commachen126. The majority judgment G adopted a wide interpretation, whereby any appeal on proscribed grounds, by the candidate, for himself, against his rival, or to the voter, would constitute a corrupt practice: 124 1990) 2 All ER 118 125 (2003) 7 SCC 628 126 H (2017) 2 SCC 629

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“47. There is no doubt in our mind that keeping in view the social context in which clause (3) of Section 123 of the Act was enacted and today’s social and technological context, it is absolutely necessary to give a purposive interpretation to the provision rather than a literal or strict interpretation as suggested by the learned counsel for the appellants, which, as he suggested, should be limited only to the candidate’s religion or that of his rival candidates. To the extent that this Court has limited the scope of Section 123(3) of the Act in Jagdev Singh Sidhanti [Jagdev Singh Sidhanti v. Pratap Singh Daulta, (1964) 6 SCR 750 : AIR 1965 SC 183] , Kanti Prasad Jayshanker Yagnik [Kanti Prasad Jayshanker C Yagnik v. Purshottamdas Ranchhoddas Patel, (1969) 1 SCC 455] and Ramesh Yeshwant Prabhoo [Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130 : (1995) 7 Scale 1] to an appeal based on the religion of the candidate or the rival candidate(s), we are not in agreement D with the view expressed in these decisions. We have nothing to say with regard to an appeal concerning the conservation of language dealt with in Jagdev Singh Sidhanti [Jagdev Singh Sidhanti v. Pratap Singh Daulta, (1964) 6 SCR 750 : AIR 1965 SC 183] . That issue does not arise for our consideration. E ************ Conclusion

50. On a consideration of the entire material placed before us by the learned counsel, we record our conclusions as F follows: 50.1. The provisions of clause (3) of Section 123 of the Representation of the People Act, 1951 are required to be read and appreciated in the context of simultaneous and contemporaneous amendments inserting clause (3-A) in G Section 123 of the Act and inserting Section 153-A in the Penal Code, 1860. 50.2. So read together, and for maintaining the purity of the electoral process and not vitiating it, clause (3) of Section 123 of the Representation of the People Act, 1951 must be H

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A given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the grounds of the religion, race, caste, community or language of (i) any candidate, or (ii) his agent, or (iii) any other person making the appeal with the consent of the candidate, or (iv) the elector. 50.3. It is a matter of evidence for determining whether an appeal has at all been made to an elector and whether the appeal if made is in violation of the provisions of clause (3) of Section 123 of the Representation of the People Act, 1951.”

147. After the decision in Indra Sawhney, the NCBC Act was enacted by Parliament in 1993. The scheme of that enactment showed that the NCBC was tasked with making recommendations for various purposes; especially, (by Section 9 (1)) to “examine requests for inclusion of any class of citizens as a backward class in the 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”. By all accounts, that commission embarked on its task and identified SEBCs in all the 31 states and union territories in India. According to the information available 127, as many as 2479 castes and communities have been notified as backward classes, throughout the entire country, in relation to each state and union territory. It is nobody’s case that the statutory commission – NCBC was not functioning properly, or that there was any interference with its work. Nor is there any suggestion that states voiced resentment at the decisions or recommendations of the NCBC. Given these, the important question that hangs in the air- if one can say so- is why did Parliament have to go to such great lengths, to merely confer constitutional status, upon the NCBC, and at the same time, tie the hands of the Union Government, G robbing it of the flexibility it always had, of modifying or amending the list of OBCs for the purposes of the Union Government and Central public sector employment, and for purposes of schemes and admission to institutions, under Article 15(4). 127 Website of the Ministry of Social Justice, Central Government: http:// H socialjustice.nic.in/UserView/index?mid=76674 accessed on 12.04.2012 at 22.02 hrs.

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148. It was asserted by the Attorney General and the states, that the move to amend the Constitution was only to empower the Central Government to publish a list, for union employment and Central PSU posts. That power always existed- under the NCBC Act. Concededly, the states were not interfering with those lists. The Union always had and exercised power to add or vary the contents of such lists for central posts, PSUs and institutions, whether it enacted a law or not. There is no reason why rigidity had to be imparted to the position with regard to preparation of a list, by taking away the flexibility of the President to amend the lists, and requiring it to approach Parliament, after initially publishing a list under Article 342A. Again, if this court’s direction in Indra Sawhney is the reason, then there is no enabling legislation in all states, for setting up commissions. Rather, to require the President on the aid and advice of the Union Council of Ministers to issue a notification which can be only changed by Parliament (by reason of Article 342A), is mystifying.

149. The interpretation suggested by the respondents, and by Ashok D Bhushan, J., that the power of the states, which existed till the 102 nd Amendment was made, continues unimpeded, is not borne out. Such an interpretation amounts to saying that Parliament went to great lengths by defining, for the first time, the term SEBC128 in the Constitution, and provided for one notification under Article 342Aissued by the President, which would “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”, and then, restricted the width of the term “deemed for purposes of this Constitution” by giving primacy to the term “Central List”. Such an interpretation restricts the specification of a community as backward, in relation to that State or Union territory, only for purposes of the Central List, i.e., for purposes of central government employment and Central Institutions. Such an interpretation with respect, is strained; it deprives plain and grammatical meaning to the provisions introduced by the 102nd Amendment, has the effect of tying the hands of the Central Government, and at the same time, grants the states unlimited latitude in the manner of inclusion of any class of citizens as backward.

128 which per Article 366 (26C) “means such backward classes as are so deemed under article 342A for the purposes of this Constitution” H

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A 150. The claim that the interpretation suggested by the respondents is pragmatic and conforms to the doctrine of purposive interpretation, with respect, cannot be accepted. It completely undermines the width and amplitude of the following: (a) The deeming fiction introduced by the 102nd Amendment, B while inserting Article 366 (26C); (b) The use of the term “means” which has been interpreted to imply an exhaustive definitional expression, in several decisions of this court129, as a device to place the matter beyond the pale of interpretation, to ensure that the only C meaning attributable is the one directed by the provision. Thus, SEBCs are, by reason of Article 366 (26C) only those deemed to be so under Article 342A. (c) The emphasis is on the community- upon being included, under Article 342A, for the purposes of this Constitution D being “deemed to be” socially and educationally backward classes, in Article 366 (26C). Thus, for all purposes under the Constitution, such communities are deemed to be SEBCs. (d) The logical corollary is that such inclusion is for the purposes of the constitution, to enable state and central government E benefits, i.e. welfare measures, special provisions under Articles 15 (4) and 15 (5), as well as employment, under Article 16 (4). The enactment of this provision excludes all other methods of identification, by any other body - either the state, or any state commission or authority. F (e) The use of the expression for the purposes of this Constitution, - in Article 342A (1), also emphasizes the idea that for all purposes, i.e under Article 15 (4), 15 (5), 129 Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682 where a Constitution Bench stated: “72. The definition has used the word ‘means’. When a statute says that a word G or phrase shall “mean”— not merely that it shall “include” — certain things or acts, “the definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put down in definition” (per Esher, M.R.,Gough v. Gough[(1891) 2 QB 665] ). A definition is an explicit statement of the full connotation of a term.” Also P. Kasilingam v PSG College of Technology 1995 Supp (2) SCC 348; Black Diamond Beverages v Commercial Tax Officer 1998 (1) SCC 458; Godrej and H Boyce Manufacturing Co v State of Maharashtra 2014 (3) SCC 430.

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and 16 (4), only the communities or classes deemed to be A SEBCs under Article342A would be treated as such, in relation to the State or Union territory concerned. (f) Article 338 (10) was amended, to delete references to backward class of citizens. It originally stated that scheduled castes also included references “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”. These expressions were omitted and an entirely new provision, exclusively for purpose of socially and educationally backward classes, was inserted (Article 338B), which has to independently consider all aspects relating to SCBCs, in a manner identical to SCs and STs.

151. If all these factors are kept in mind, there can be no room for doubt that “the Central List” in Article 342A (2) is none other than the list published in Article 342A(1) for the purposes of the Constitution. D This means that after the introduction of these provisions, the final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the President, and thereafter, in case of modification or exclusion from the lists initially published, with the Parliament.

152. This sequitur is the only reason why change was envisioned in the first placeby Parliament, sitting in its constituent capacity, no less, which is to alter the entire regime by ensuring that the final say in the matter of identification of SEBCs would follow the same pattern as exists, in relation to the most backward classes among all citizens, (i.e. the SCs and STs, through Articles 338, 338A, 341 and 342). Too much cannot be read into the use of the expression the Central list for the simple reason that it is a list, prepared and published by the President, on the aid and advice of the Union Council of Ministers. The term Central is no doubt, unusual, but it occurs in the Constitution in several places. At the same time, the Council of Ministers headed by the Prime Minister advices the President and provides information relating to the administration of the affairs of the Union and proposals for legislation (Article 78). Similarly, Article 77 uses the term “the Government of India”. Given that these terms are used interchangeably, and mean the same, “the Central List” carries no other signification than the list notified under Article 342A(1), by the President at the behest of the Central Government. H

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A 153. It is noticeable that Article 367 of the Constitution of India incorporates, by reference, the definitions set out in the General Clauses Act, 1897, as those operating in relation to expressions not defined expressly in the Constitution itself130. By Section 3 (8) (b) of that Act, “Central Government” means, after commencement of the Constitution, the President of India. 131 In a recent decision, K. B Lakshminarayanan v. Union of India132 this court held that 130

367. Interpretation.—(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. (2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, C or to Acts or laws of, or made by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor, as the case may be. (3) For the purposes of this Constitution ¯ “foreign State” means any State other than India: Provided that, subject to the provisions of any law made by Parliament, the President may by order4 declare any State not to be a foreign State for such purposes as may be specified in the order.” D 131 General Clauses Act “3. Definitions—In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant i n the subject or context, ***** (8) “Central Government”shall— (a) in relation to anything done before the commencement of the Constitution, E mean the Governor General or the Governor General in Council, as the case may be; and shall include— (i) in relation to functions entrusted under sub-section (1) of section 124 of the Government of India Act, 1935, to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that subsection; and (ii) in relation to the administration of a Chief Commissioner’s Province, the Chief Commissioner acting within the scope of the authority given to him under sub- F section (3) of section 94 of the said Act; and (b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and shall include— (i) in relation to functions entrusted under clause (1) of article 258 of the Constitution, to the Government of a State, the State Government acting within the scope of the authority given to it under that clause; 1 *** (ii) in relation to the administration of a Part C State 2 before the commencement G of the Constitution (Seventh Amendment) Act, 1956], the Chief Commissioner or the Lieutenant Governor or the Government of a neighbouring State or other authority acting within the scope of the authority given to him or it under article 239 or article 243 of the Constitution, as the case may be; and (iii) in relation to the administration of a Union territory, the administrator thereof acting within the scope of the authority given to him under article 239 of the Constitution” 132 (2020) 14 SCC 664 H

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“24. Thus, it is clear that the definition of Central Government, A which means the President is not controlled by the second expression “and shall include the Administrator”. The ordinary or popular meaning of the words “the President” occurring in Section 3(8)(b) has to be given and the second part of the definition shall not in any way control or affect the first part of the definition as observed above. In the definition of Central Government, an Administrator shall be read when he has been authorised or delegated a particular function under the circumstances as indicated above. No statutory rules or any delegation has been referred to or brought on record under which the Administrator is entitled or authorised to make nomination in the Legislative Assembly of the Union Territory of Puducherry. Thus, in the present case, the definition of Central Government, as occurring in Section 3(3) of the 1963 Act has to be read as to mean the President and not the Administrator. The issue is answered accordingly.” D Article 342A (1) does not use the expression “Central Government”. Nevertheless, Article 342A (2) uses the expression “Central List” which has led to an elaborate interpretive discourse. If the logic of Article 367 (1) of the Constitution, together with Section 3 (8) (b) of the General Clauses Act, were to be applied, “Central List” necessarily refers to the list under Article 342A (1), which is prepared by the President, for the purpose of the Constitution. The other interpretation, with respect, would be unduly narrow and restrictive; it would have the effect of adding words such as to the effect that the Central List, would “apply in relation to the Central Government”. Such an addition of terms, with respect, cannot be resorted to, when interpreting a Constitutional amendment, The amended provisions clearly state that the determination is for the purpose of the Constitution and that SEBCs (per Article 366 (26C) are deemed to be as determined in Article 342A; Article 342A states that the President shall by notification publish SEBCs in relation to states and union territories, for the purpose of the Constitution. G

154. There are other compelling reasons too, why the restrictive interpretation of Article 342A, limiting the exercise of identification for the purpose of central employment and central benefits(and not made applicable to states) is to be avoided as opposed to the interpretation H

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A based on the plain language of the new provisions, which has to be adopted.

155. Parliament, through the 102ndAmendment clearly intended that the existing legal regime for identification of communities as SCs and STs and for their inclusion in the list of SCs and STs under Articles B 341 and 342, which had hitherto existed, ought to be replicated in relation to identification of SEBCs. To achieve that, Parliament inserted Article 338B – which is a mirror image of Articles 338 and 338A. The tasks assigned to the new Commission for Backward Classes which is envisioned as a multi-member Commission, are radically different from the duties which were assigned by Parliament in the NCBC Act. Under C Section 9 of the erstwhile NCBC Act, which was repealed just before the commencement of the 102nd amendment, the NCBC was to examine requests for inclusion of any class of citizens as backward classes in the list and the advice of the Commission was ordinarily binding upon the Central Government. Section 11 provided for a periodical revision of lists. As noticed by Ashok Bhushan, J., Article 338B envisions a larger role for the new Commission. This Commission not only advises the Central Government but also the States. It is impossible to read Article 338B in isolation from the pre-existing parimateria provisions; it must be interpreted in the light of the other two provisions which had existed all this while – Articles 338 and 338A. Those provisions clearly contemplate the same consultative role with the Commission on policy matters, of the Central Government as well as the State Governments. This is evident from sub-article (9) of these Articles. Thus, the Commission – under Article 338B is not only assigned a constitutional role but is also expected to act as an expert and engage with experts in the determination of the communities. Article 338B(5) uses the term “SEBC” no less than on six occasions. The expression also occurs in Article 338B(9). Thus, for the purposes of the Constitution, the Commission newly established under Article 338B, i.e., the National Commission for Backward Classes shall be the only body to whom both the Central Government and the State Governments have to turn, in all matters of policy. Necessarily, the question of matters of policy would also include identification of castes or communities as backward classes.

156. If the intention of the Parliament in amending the Constitution were to merely confer or clothe the National Commission with constitutional status, the matter would have ended by inserting Article H

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338B. To that end, the argument of the respondents is understandable. A Short of the task of identification, (which could have continued with the states), if the amendment had not inserted Article 342A, the States would have been duty bound to consult the Commission under Article 338B. The interpretation by Ashok Bhushan, J. to that extent might have been acceptable. However, that the Constitution was amended further to B introduce Article 342A, containing the phraseology that it does, adding an entirely new dimension which the court has to interpret, after considering the light of the previous authorities, as also whenever new provisions were added to the Constitution and more importantly, when such amendments were also accompanied by changes in the definition clause. C

157. The previous part of this judgment has discussed various authorities which had considered one or the other clauses of Article 366, i.e the NDMC case, Tata Consultancy (supra), Willamson Financial Services (supra). The NDMC case was decided by a nine-judge bench; in all the other decisions, this court gave the fullest latitude to the expressions in the definition clause while interpreting them in the peculiar facts of the case. Similarly, when constitutional amendments introduced new definitions such as in Article 366(29A), judicial interpretation leaned in favour of giving literal meaning to the terms used which had led to change in the existing tax regime. Such changes too limited the State’s legislative powers. Thus, for instance, in the Constitution bench judgments in Builders Association (supra) and in 20th Century Leasing (supra), this Court had decisively ruled that the taxing power of the States was explained by the amendment but at the same time was limited in more than one manner by the express terms which had introduced a new entry in the Central or Union legislative field. Furthermore, the principles on which taxation could be resorted to by the States too had to be defined by the Union Government. In other cases, whenever constitutional amendments brought about changes in the existing status quo like in Kihoto Hollohan (supra) or limited the legislative power constraining the state from expanding its council of ministers beyond a certain percentage as with the introduction of Article 164(1A)in Bimolangshu G Roy(supra). This Court gave full literal effect to the terms of the amendment after understanding the rationale for the change.

158. In Ashok Kumar Thakur (supra) and N. Nagraj (supra) the changes brought through Constitutional Amendments were the subject H

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A matter of interpretation. In Nagaraj, they were also the subject matter of challenge on the ground that the amendments violated the basic structure of the Constitution. There too, the Court interpreted the terms of the amendment by adopting a plain and literal meaning and not by cutting down or reading down any term or phrase. In Ashok Kumar Thakur (supra), the introduction of the new and radical Article 15(5) B enabled States to make special provisions for socially and educationally backward classes of citizens, in unaided private educational institutions.

159. Given the weight of such precedents- which point to this court(i) giving full effect to newly added provisions, (ii) by adopting the literal meaning in the definition, set out in the Constitution (iii) as well as in the amendments to the definition clause, and (iv) all of which noticed the changes brought about through the amendments, and gave them plain effect, it is difficult to accept that the power of amendment of the Constitution, in accordance with the special procedure set out in Article 368 – was used to about bring cosmetic changes conferring constitutional status to NCBC. The conferment of constitutional status – as was noticed previously, is achieved by only inserting Article 338B. However, the fact that it mirrors the previous two provisions of Articles 338 and 338A and borrows from that pattern clearly suggests that the new Commission is to have an identical role much like the Commissions that advice the Central Government and Parliament with respect to all matters pertaining to SCs and STs. Therefore, the new Commission is expected to play a decisive role in the preparation of lists, which the Constitution set apart as one list, deemed to be the list of SEBCs for the purposes of Constitution in relation to every State and Union Territory. The interplay between Articles 366(26C) and 338B is therefore crucial. The term “deemed to be for the purposes of this Constitution” and a reference to Article 342A would necessarily mean that even the provision under Article 338B, is to be interpreted in the same light. In other words, were the intention merely to confer constitutional status, that would have been achieved by an insertion of the provision in Article 338B without any other amendment, such as being in the definition clause under 366 or the insertion of 342A. G

160. The change brought about by the 102ndAmendment by introducing Sub-Article (26C) to Article 366 and inserting a new provision - Article 342A, to my mind, brings about a total alignment with the existing constitutional scheme for identification of backward classes, with the manner and the way in which identification of SCs and STs has been H

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undertaken hitherto, by the Central Government culminating in Presidential A notifications. That task is aided by two Commissions - respectively for SCs and STs, much as in the case of the new National Commission for Backward Classes which will undertake the task of aiding and advising the Central Government for issuing the notification for the purposes of the Constitution under Article 342A. The pattern of finality and a single list, in relation to every State and UT – which exists in relation to SCs and STs (Articles 341 and 342) now has been replicated with the introduction of Article 342A.

161. There have to be strong, compelling reasons for this Court to depart from the interpretation which has been hitherto placed on the definition clause. As has been demonstrated in more than one case, the interpretation of the definition clause in its own terms in respect of the original constitutional provisions as well as the new terms brought in by way of amendment (which also brought in substantive amendments) have consistently shown a particular trend. If one keeps in mind the interpretation of Articles 341 and 342 from the earliest decision in D Bhayalal (supra) and Bir Singh (supra), the only conclusion is that the task of examining requests or demands for inclusion or exclusion is in the first instance only with the President [Article 342(1)]. In this task, the President, i.e. the Central Government is aided by the work of the Commissions set up under Articles 338 and 338A. Upon the publication of the list containing the notification under Articles 341(1) and 342(1), E for the purposes of the Constitution in relation to the concerned State or the concerned UT, the list of SCs and STs is conclusive. Undoubtedly, these were the original provisions. Yet, one must be mindful of a crucial fact, which is that the task for making special provisions under Article 15 and for making reservations under Article 16(4) extends to the States. F The power exercised by the President in relation to every State vis-à- vis SCs and STs has been smooth and by all accounts, there has been no resentment or friction. Once the concerned community or caste is reflected in the list of one or the other State or Union Territory, the extent of the benefits to be provided to members of such community is a matter that lies entirely in the States’ domain. The amendment or G modification of any State list, can be undertaken only by Parliament, not even by the President.

162. Much like in the case of the alignment of Article 338B with the other two previously existing provisions of the Constitution, Article H

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A 342A aligns the function (of identification of SEBCs and publishing the list, by the President) with Articles 341 and 342. These three sets of consecutive provisions, share their umbilical cord with the definition clause [Article 366(24) in relation to SCs; Article 366(25) in relation to STs and the new 366(26C) in relation to SEBCs]. This two-way linkage between the definition clause with the substantive provisions is not without significance. As has been held in Marri Chandra Shekar (supra); Action Committee (supra) and Bir Singh (supra), the expression “for the purposes of the Constitution” has to be given fullest weight. Therefore, whenever lists are prepared under these three provisions in relation to States or UTs, the classes and castes included in such list and no other are deemed to be castes or classes falling within the one or the other category (SCs, STs, SEBCs) in relation to the particular State or UT for the purposes of the Constitution.

163. If one were to, for the sake of argument, consider the deliberations before the Select Committee reflected in its report, it is evident that amendments at three places were moved to place the matter beyond controversy and clarify that States’ jurisdiction and power to identify SEBCs would remain undisturbed. To achieve this, proposed Articles 342A(3) & (4) were introduced. These proposed amendments were not accepted; and were dropped. No doubt, the rationale for dropping (the amendments) was the impression given in the form of an assurance that the express terms of the amendment did not divest the States of their power. Further, paras 56 and 57 of the Select Committee report clearly state that the Governor acts on the aid and advice of the Council of Ministers of the State and that Articles 341 and 342 provide for consultation with the Governor in relation to SCs and STs of the concerned States. The assurance held out was that, “at no time has the State been excluded in the consultation process. It is by way of the State Government invariably which recommends to the President the category of inclusion/exclusion in the SCs and STs. Similar provision is provided for in the case of conferring of constitutional status to backward classes for inclusion in Central List of SEBCs in consultation with Governor” thereby implying consultation with the State Government. It was also stated in para 57 (of the report)that “the expression ‘for the purpose of this Constitution’ is identical to that phrase in Article 341 and Article 342.”

164. The deliberations of the Select Committee report only show that the existing pattern of identification and inclusion of SCs and STs

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which entailed the active involvement of the States was sought to be A replicated for the purpose of preparing the list, of OBCs, by the President. It was emphasised during the course of arguments, an aspect that finds due reflection in the draft judgment of Ashok Bhushan, J. that the term, “the Central List” is of crucial significance because it in fact controls the entire provision, i.e., Article 342A, that it is in line with the Select B Committee Report as well as Parliamentary debates and that this Court has to give it a purposive interpretation. In my respectful opinion, an isolated consideration of the expression, “the Central List” containing classes and communities which are deemed to be backward for the purpose of the Constitution, would undermine the entire constitutional scheme. Parliamentary intent, on the contrary, clearly was to replicate the existing pattern for inclusion in the list of SCs and STs for SEBCs – (a term that had not been defined in the Constitution till then). Yet another way of looking at the matter is that Article 342A(1) is the only provision which enables the publication of one list of SEBCs. This provision clearly talks of publication of a list through a Presidential notification for the purpose of the Constitution after the process of identification. It is this list which contains members of classes or communities which can be called as SEBCs by virtue of Article 366(26C). In other words, the subject of Article 342A(1) determines the subject of Article 366(26C)which in turn controls and guides the definition of the term “SEBCs” for the entire Constitution. This is achieved by using emphatic terms such as “means” E and “deemed to be”. A similar emphasis is to be found in Article 342A(1) which uses “shall for the purposes of the Constitution”. In both cases, i.e. Articles 366(26C) and 342A(1), there are no words limiting, or terms indicative of restriction as to the extent to which such inclusion is to operate. Thus, like in the case of Articles 341 and 342, those classes and F castes included in the list of SEBCs in relation to every State and every UT are: (i) For the purposes of the Constitution; (ii) deemed to be SEBCs in relation to concerned State or Union Territory. G

165. The width and amplitude of the expression “shall be deemed to be” of the expression cannot be diluted or cut down in any manner whatsoever. If one understands that this list in fact identifies SEBCs for the purposes of the Constitution, all that follows in Article 342A(2) is that such list can only be amended by Parliament. The Court, therefore, H

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A has to see the object and content of the entire Article to determine what it means. So viewed, firstly it is linked with Article 366(26C) and the use of the terms “means” and “deemed” in the definition is decisive, i.e., that there can be no class or caste deemed for the purposes of Constitution other than those listed under Article 342A. Secondly, Article 342A(1) is the only provision conferring power by which B identification is undertaken by the President in the first instance. This identification and publication of the list containing the cases and communities is in relation to each State and each Union Territory. Third, after publication of this notification, if changes are brought about to it by inclusion or exclusion from that list, (called the “Central List” of SEBCs C for the first time), Parliament alone can amend it. It is important that the expression “the Central List” is clarified by the phrase “socially and educationally backward classes specified in a notification under Clause (1)” which is reinforced subsequently by the use of the term “aforesaid notification”. Thus, the subject matter of initial identification and publication of the list for the purposes of the Constitution is by the D published President alone (under the aid and advice of the Union Council of Ministers) and any subsequent variation by way of inclusion or exclusion can be achieved only through an amendment by law, of that list.

166. If one interprets the entire scheme involving Articles E 366(26C), 342A(1) and 342A(2), the irresistible conclusion that follows is that the power of publishing the list of SEBCs, in relation to every State and Union Territory for the purposes of the Constitution is with the President only. Such notification is later called as the Central List by Article 342A(2); it can only be amended by the Parliament. The contrary F interpretation virtually reads into the provisions of the Constitution amendments which were proposed and expressly rejected in the proceedings of the Select Committee; it also has the effect of reading in what certain dissenting members had proposed. Furthermore, by the interpretive process of taking into account the deliberations before the Select Committee, and speeches on the floor of the Parliament this Court G would be reading into the Constitution provisions which no longer exist i.e., that the State can continue to carry out identification of SEBCs. This exercise would be contrary to the express terms.

167. Therefore, the above expressions, having regard to the precedents of this Court with respect to (i) interpretation of the definition H

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clause under Article 366; (ii) interpretation of new definitions inserted in A Article 366 and (iii) interpretation of amendments made to the Constitution which inserted new provisions, where the Court always leant in favour of giving fullest effect to the substantive provisions, this court has to adopt the same approach, to usher change, by plain, literal construction. This court never whittled down the terminology through extrinsic aids B such as speeches made on the floor of the Parliament or Select Committee reports. In this instance, doing so would be giving effect to what Parliamentarians said or Ministers said, ignoring thereby, the plain terms of the Constitution. As stated earlier, the Court cannot assume that Parliament merely indicated a cosmetic change by conferment of constitutional changes which could have been best achieved by introducing C Article 338B.

168. Besides the judgment in Kihoto Hollohan (supra), this court, in Raghunathrao Ganpatrao v. Union of India133, dwelt on the duty of this court, to discern the meaning, and give effect to amendments to the Constitution. The court quoted from Walter F. Murphy, who in Constitutions, Constitutionalism and Democracy explained what an ‘amendment’ meant: “Thus an amendment corrects errors of commission or omission, modifies the system without fundamentally changing its nature — that is, an amendment operates within the theoretical parameters of the existing Constitution.” This court then observed as follows: “86. In our Constitution, there are specific provisions for amending the Constitution. The amendments had to be made only under and by the authority of the Constitution strictly following the modes prescribed, of course subject to the limitations either inherent or implied. The said power cannot be limited by any vague doctrine of repugnancy. There are many outstanding interpretative decisions delineating the limitations so that the constitutional fabric may not be impaired or damaged. The amendment which is a change or alteration is only for the purpose of making the Constitution more perfect, effective and meaningful. But at the same time, one should keep guard over the process of amending any 133 1994 Supp (1) SCC 191 H

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A provision of the Constitution so that it does not result in abrogation or destruction of its basic structure or loss of its original identity and character and render the Constitution unworkable. The court is not concerned with the wisdom behind or propriety of the constitutional amendment because these are the matters for those to consider who are vested B with the authority to make the Constitutional amendment. All that the court is concerned with are (1) whether the procedure prescribed by Article 368 is strictly complied with? and (2) whether the amendment has destroyed or damaged the basic structure or the essential features of the Constitution.”

C 169. In his article Statutory Interpretation and Constitutional Legislation (sourced from the Cambridge Repository’s Interpreting Constitutional Legislation David Feldman134 states that at times, there is no clear indication why a statute or amendment is introduced: “Statutes usually carry on their faces no indication of the mischief at which they are aimed; they do not tell a story. Looking at the statute as a whole will not always help: many statutes are collections of knee-jerk reactions to a number of different stimuli, and the degree of coherence is further reduced where changes in government policy are given effect by amending earlier legislation drafted to give effect to different policies.” The article then goes on to emphasize that the context, and the pre-existing regime has to be considered, while interpreting the amendment or provision: F “Constitutional provisions establishing the state and its main institutions will often not be a response to a particular mischief. A state’s institutional design is more likely to reflect a political theory and idea of good government, as in the USA., or to be a result of gradual accretion, as in the UK, G than to be a reaction to an identifiable problem. On the other hand, problems arising in the pre-constitutional period may 134 Professor of law, Cambridge University and QC. Also former international judge in the Constitutional Court of Bosnia and Herzegovna https://aspace.repository.cam.ac.uk/bitstream/handle/1810/246176/OA1838_Statutory- interp retation-and-constitutional-legislation-FINAL- 19-03- H 14.pdf?sequence=1&isAllowed=y

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have directly influenced the choice of political theory, and so A have indirectly affected the distribution of responsibilities between institutions, the powers allocated to each institution, their relationships with each other, their powers, and forms of accountability.”

170. As to what was the rationale for introducing Article 366 B (26C) and the other substantive amendments by the 102nd Amendment, the statement of objects and reasons is not precise. Even the Select Committee Report only voices that constitutional status is to be conferred upon the new Commission which would undertake its task and that the pattern existing with respect to SCs and STs would be followed. In these circumstances, given that the limited interpretation would virtually continue C the status quo, this Court has to take into account the state of affairs which existed at the time of introduction of the amendment.

171. The rationale for the amendment, highlighting the need for provisions such as Article 338B, 342A read with Article 366(26C) is that Parliament had the experience of about 71 years’ working of the D Constitution and the system with respect to matters regarding identification of the most backward classes of communities, i.e., SCs and STs. By the 102nd Amendment, one commission for SEBCs was set up to meet the aspirations and expectations of the population of the country who might have become SEBCs for various reasons, to voice their concerns directly for consideration by the National Commission under Article 338B, which could then become the subject matter of inclusion under Article 342A.

172. An offshoot of the 102nd Amendment possibly would be that dominant groups or communities, once included, as SEBCs by states would, due to their relative “forward” status, likely take a disproportionate share of state benefits of reservation in employment and admission benefits to state institutions. Their inclusion can well result in shrinkage of the real share of reservation benefits for the most backward. This consequence can be avoided, if a commission or body, such as the one under Article 338B evolves and applies rational and relevant criteria. G

173. The existence of a permanent body, which would objectively, without being pressurised by the dust and din of electoral politics, consider the claims for inclusion, not based on ad-hoc criteria, but upon uniformly evolved criteria, with the aid of experts, in a scientific manner, be in H

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A consonance with the constitutional objectives of providing benefits to SEBCs, having regard to relative regional and intra state levels of progress and development. Given all these factors, this Court is of the opinion that the 102ndAmendment, by inserting 366(26C), 342A, 338B and 342A aligned the mechanism for identification of SEBCs with the existing mechanism for identification of SCs/STs. B

174. At this stage, a word about Article 338B is necessary. Earlier, it was noticed that this provision mirrors Articles 338 and 338A and sets out various provisions for setting up a National Commission which is like its counterparts, in relation to SCs and STs (Articles 338 and 338A). The consultative provisions under Articles 338B(7) and 338B(9) in the C opinion of this Court, only imply that in matters of identification, the States can make their recommendations. However, by reason of Article 342A, it is the President, i.e. the Union Government only, whose decision is final and determinative. The determination made for inclusion or exclusion can be amended through a law made by Parliament alone. D Given that Article 338(B)(9) enjoins the State/UT to consult the Commission on all major policy matters affecting SEBCs, this consultation cannot imply that the States’ view would be of such weight, as to be determinative or final and submit. The States can by virtue of Article 338(7) consider the report of the Commission and are obliged to table the recommendations relating to them before their legislature. The State E can even voice its reservations and state why it cannot accept the report. Further, given the imperative and categorical phraseology of Article 342A, the final decision of whether to include any caste or community in the list of SCBCs is that of the Union Government, i.e. the President.

175. This Court is also of the opinion that the change brought about by the 102nd Amendment, especially Article 342A is only with respect to the process of identification of SEBCs and their list. Necessarily, the power to frame policies and legislation with regard to all other matters, i.e. the welfare schemes for SEBCs, setting up of institutions, grants, scholarships, extent of reservations and special provisions under Article 15(4), 15(5) and 16(4) are entirely with by the State Government in relation to its institutions and its public services (including services under agencies and corporations and companies controlled by the State Government). In other words, the extent of reservations, the kind of benefits, the quantum of scholarships, the number of schools which are to be specially provided under Article 15(4) or any H

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other beneficial or welfare scheme which is conceivable under Article A 15(4) can all be achieved by the State through its legislative and executive powers. This power would include making suggestions and collecting data – if necessary, through statutory commissions, for making recommendations towards inclusion or exclusion of castes and communities to the President on the aid and advice of the Union Council B of Ministers under Article 342A. This will accord with the spirit of the Constitution under Article 338B and the principle of cooperative federalism135 which guides the interpretation of this Constitution.

176. The President has not thus far prepared and published a list under Article 342A (1). In view of the categorical mandate of Article 342A – which has to be necessarily read along with Article 366(26C), C on and from the date of coming into force of the 102nd Amendment Act, only the President, i.e. the Central Government has the power of ultimately identifying the classes and castes as SEBCs. This court is conscious that though the amendment came into force more than two years ago, as yet no list has been notified under Article 342A. It is also noteworthy D that the NCBC Act has been repealed. In these circumstances, the Court holds that the President should after due consultation with the Commission set up under Article 338B expeditiously, publish a comprehensive list under 342A(1). This exercise should preferably be completed with utmost expedition given the public importance of the matter. Till such time, the SEBC lists prepared by the states would continue to hold the field. These E directions are given under Article 142, having regard to the drastic consequences which would flow if it is held that all State lists would cease to operate. The consequences of Article 342A would then be so severe as to leave a vacuum with respect to SEBCs’ entitlement to claim benefits under Articles 15 and 16 of the Constitution. F Re: Point No. 6 Whether, Article 342A of the Constitution abrogates States power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?

177. In W.P.938/2020, learned counsel for the petitioner, Mr. Amol. G B. Karande urged that the provisions of the 102nd Amendment, especially Article 366(26C) and Article 342A violate the essential features or the basic structure of the Constitution. It was argued that these provisions 135 Jindal Stainless Ltd. v. State of Haryana, 2016 SCC OnLine SC 1260; State of Rajasthan v. Union of India 1978 1 SCR 1 H

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A impact the federal structure by denuding the State of its power to fully legislate in favour of SEBCs under Entry 25 and Entry 41 of List II, and provide for reservations in favour of SEBCs. It was argued that the power to identify and make suitable provisions in favour of SEBCs has always been that of the States. This constitutional position was recognized in Indra Sawhney (supra), when the Court required the State B Government to set up permanent Commissions. Through the impugned provisions, the President has now been conferred exclusive power to undertake the task of identification of SEBCs for the purposes of the Constitution. It was submitted that this strikes at the root of the federal structure because it is the people who elect the members of the State C legislatures, who frame policies suitable for their peculiarly situated needs, having regard to the demands of the region and its people.

178. Learned counsel argued that the original Constitution had set apart the power to identify SCs and STs and conferred it upon the President – after which, amendment could be carried out by the D Parliament. However, such a power was advisably retained so far as the States were concerned, with their executives and legislatures. The deprivation of the States’ power strikes at the root of its jurisdiction to ensure that its residents get suitable welfare measures in the form of schemes applicable to SEBCs as well as reservations.

E 179. Learned counsel relied upon certain passages of the judgment of this Court in Kesavananda Bharti v. State of Kerala136 to support the argument that without submitting the amendment for rectification under the proviso to Article 368(2), to the extent it denuded the State legislatures of their powers to make laws in respect of various fields under the State List too, the amendment would be void. F

180. The Learned Attorney General who represented the Union argued that there is no question of the 102nd Amendment Act or any of its provisions violating any essential feature of the Constitution. It was submitted that unless the amendment in question directly affects (i.e. takes away the legislative power altogether in the list rather than a part G of its content by amending any of the provisions in List II or List III of the Seventh Schedule to the Constitution), there is no need for seeking rectification of a majority of the statutes. The Attorney General relied upon a judgment of this Court in Sajjan Singh v. State of Rajasthan137. 136 1973 Supp. SCR 1 137 H 1965 SCR (1) 933

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181. Two issues arise with respect to the validity of provisions inserted by the 102nd Amendment Act. The first is a facial challenge inasmuch as the petitioner urges that without following the procedure indicated in the proviso to Article 368(2), i.e. seeking approval or ratification of atleast one half of the legislative assemblies of all the States, the amendment is void. In this regard what is noticeable is that direct amendments to any of the legislative entries in the three lists of the Seventh Schedule to the Constitution requires ratification. Thus, the insertion of substantive provisions that might impact future legislation by the State in an indirect or oblique manner would not necessarily fall afoul of the Constitution for not complying with the procedure spelt out in the proviso to Article 368(2). In Sajjan Singh (supra), this Court C held as follows: “The question which calls for our decision is: what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts D under Article 226 are likely to be affected?” The Sajjan Singh court repelled the challenge, holding that “… Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socio-economic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts’ powers prescribed by Article 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. G

182. The majority judgment, therefore decisively held that an interpretation which hinges on indirect impact of a provision, the amendment of which needs ratification of the states, does not violate the Constitution and that unless the amendment actually deletes or alters H

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A any of the Entries in the three lists of the Seventh Schedule, or directly amends an Article for which ratification is necessary, recourse to the proviso to Article 368 (2) was not necessary.

183. More recently, this issue was gone into in Kihoto Hollohan, where a challenge on the ground that all provisions of an amendment which introduced the Tenth Schedule were void for not following the procedure under the proviso to Article 368, were questioned. The Court proceeded to analyse every provision of the Tenth Schedule and held that para 7, which excluded the jurisdiction of all Courts, had the effect of divesting the jurisdiction of Courts under Articles 226 and 32 of the Constitution. In other words, the direct result of the amendment was to bar the jurisdiction of High Courts and thus, it directly impacted Chapter 5 of Part VI; a ratification was required by a majority of the States. Since that procedure was not followed, para 7 was held to be violative of the basic structure of the Constitution. The Court applied the doctrine of severability and held that the other parts of the amendment, contained in the Tenth Schedule did not need any such ratification and that para 7 alone would be severed on the ground of its being contrary to express constitutional provisions. This court ruled as follows: “59. In Sajjan Singh case [(1965) 1 SCR 933 : AIR 1965 SC 845] a similar contention was raised against the validity of the Constitution (Seventeenth Amendment) Act, 1964 by which Article 31-A was again amended and 44 statutes were added to the Ninth Schedule to the Constitution. The question again was whether the amendment required ratification under the proviso to Article 368. This Court noticed the question thus: (SCR p. 940) F xxxxxx xxxxxx xxxxxx

76. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the ‘Committee on Defections’ as well as the earlier Bills which were moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth

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Schedule is to curb the evil of defection which was causing A immense mischief in our body politic. The ouster of jurisdiction of courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule B if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.

77. We accordingly hold on contentions (C) and (D): C

That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having D regard to the mandatory language of Article 368(2) that ‘thereupon the Constitution shall stand amended’ the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification. E That accordingly, the Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (Fifty-second Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified. That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide H

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A a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7. B

184. As far as the question of whether the amendment has the effect of violating the basic or essential features so far as it impacts the federal structure of the Constitution is concerned, what is noticeable is that past decisions have emphasized that a mere change brought about through amendments howsoever serious the impact, cannot per se be C regarded as violative of the basic structure. In Raghunathrao Ganpatrao (supra)138 the deletion of Articles 291 and 362 of the Constitution, by amendment, was questioned on the ground that they affected the basic structure, or essential features of the Constitution. This court rejected the argument and held that: D “107. On a deep consideration of the entire scheme and content of the Constitution, we do not see any force in the above submissions. In the present case, there is no question of change of identity on account of the Twenty-sixth Amendment. The removal of Articles 291 and 362 has not made any change in the personality of the Constitution either in its scheme or in its basic features, or in its basic form or in its character. The question of identity will arise only when there is a change in the form, character and content of the Constitution. In fact, in the present case, the identity of the Constitution even on the tests proposed by the counsel of the writ petitioners and interveners, remains the same and unchanged.”

185. In N. Nagaraj (supra), this aspect was analysed in the following terms:

G “For a constitutional principle to qualify as an essential feature, it must be established that the said principle is a part of the constitutional law binding on the legislature. Only thereafter, the second step is to be taken, namely, whether the principle is so fundamental as to bind even the amending 138 H Ref. f.n. 104

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power of the Parliament, i.e. to form a part of the basic structure. The basic structure concept accordingly limits the amending power of the Parliament………………………. xxxxxx xxxxxx xxxxxx ……………..The values impose a positive duty on the State to ensure their attainment as far as practicable. The rights, liberties and freedoms of the individual are not only to be protected against the State, they should be facilitated by it. They are to be informed. Overarching and informing of these rights and values is the principle of human dignity under the German basic law. Similarly, secularism is the principle which is the overarching principle of several rights and values under the Indian Constitution. Therefore, axioms like secularism, democracy, reasonableness, social justice etc. are overarching principles which provide linking factor for principle of fundamental rights like Articles 14, 19 and D These principles are beyond the amending power of the Parliament. xxxxxx xxxxxx xxxxxx Under the Indian Constitution, the word ‘federalism’ does not exist in the preamble. However, its principle (not in the strict sense as in U.S.A.) is delineated over various provisions of the Constitution. In particular, one finds this concept in separation of powers under Articles 245 and 246 read with the three lists in the seventh schedule to the Constitution. To conclude, the theory of basic structure is based on the concept of constitutional identity. The basic structure jurisprudence is a pre-occupation with constitutional identity. xxxxxx xxxxxx xxxxxx The word ‘amendment’ postulates that the old constitution survives without loss of its identity despite the change and it continues even though it has been subjected to alteration. This is the constant theme of the opinions in the majority decision in Kesavananda Bharati. To destroy its identity is to abrogate the basic structure of the Constitution. This is the principle of constitutional sovereignty.” H

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