MARATHA RESERVATION JUDGMENT
Shubham Budhiraja[1]
Dr. Jaishri Laxmanrao Patil v.
The Chief Minister, 05.05.2021, 5JJ
Summary of Judgment
The act of 2018 provided Maratha
reservation which in aggregate exceeded 50%. The HC upheld the act holding that
exceptional circumstances exist which justifies it. The Supreme Court firstly
decided that there is no need to refer the judgment of Indra Sahwney to larger
bench. Secondly, It was also observed that Maratha were never a
backward community, Thirdly, Article 15(4) & Article 16(4) are facet of
substantive equality, Fourthly, Constitutional 102nd amendment is
valid, Fifthly, no comment on constitutional 103rd
amendment as matter it sub-judice, sixthly, Article 338B, and Article
342A are to be read in context of Parliamentary debates and their intentions
whereas S Ravindra Bhat, J hold that Article 342A to be read literally and that
President alone is competent to decide SEBC list for all states and UT. At
last, Supreme Court set aside the committee report and the act which justifies
the Maratha reseveration.
CONCLUSION
(i)
There
is no need to revisit the Indra-Sahwney Judgment
(ii)
50%
ceiling limit cannot be exceed unless exceptional circumstances
(iii)
National
Commission for Backward class is a constitutional body and its consultation is
mandatory for all states for policy making w.r.t. SEBC
(iv)
Reservation
is a temporary thing not meant to create permanent liability
(v)
Only
President is competent to make single list for SEBC through notification under
Article 342A
(vi)
There
is sea change between National commission as Statutory body and as a
constitutional body
(vii)
DPSP
cannot be executed at cost of Fundamental rights. Balance has to ensure between
both of them
(viii)
Parliament
speech can be used as aid to interpret the constitutional amendment
(ix)
77th
and 81st amendment were to undo the Indra sahwney judgment so far as
promotional in reservation & forward of reservation and they have not
touched upon 50% ceiling limit
HISTORY
OF MARATHA
The “Maratha” is a Hindu community which mainly resides in the State of Maharashtra.
After the enforcement of the Constitution of India, the President of India in
exercise of power under Article 240 appointed a Commission to investigate the
conditions of all such socially and educationally backward classes, known as Kaka Kalelkar
Commission, the first National Commission for backward classes. The
first Backward
Classes Commission did not find Maratha as other backward class community
in the State of Bombay.
On 14.11.1961, the Government of Maharashtra
appointed B.D.Deshmukh
Committee for defining OBC and to take steps for their developments. The B.D.
Deshmukh Committee submitted its report on OBC to the Government of Maharashtra
on 11.01.1964. It did not find
Maratha as backward class.
On 13.08.1967, the State of Maharashtra
issued unified list of OBC consisting of 180 castes for the entire State which did not include
Maratha
The President of India on 31.12.1979
appointed the second National Backward Classes Commission within the meaning of
Article 340 of the Constitution popularly known as Mandal Commission
The Maratha, thus, was included in
forward Hindu caste, by the second National Backward Classes
Commission
A request was received by the National
Commission for Backward Classes for inclusion of “Maratha” and a
detailed
report dated 25.02.1980 holding that Maratha is not a
socially and educationally backward class community but a socially advanced and prestigious community.
The Maharashtra State OBC Commission headed by Justice R.M. Bapat submitted a report on 25.07.2008
conclusively recording that Maratha could not be included in the OBC list because it is a forward caste
The Maharashtra State Other Backward Classes
Commission on 03.06.2013 rejected the
request of the State Government to review the findings recorded
by the State OBC Commission in its report dated 25.07.2008 holding the Maratha
caste as forward community
Despite the existence of
statutory State OBC Commission, the Government of Maharashtra appointed a special Committee
headed by a sitting Minister, Shri Narayan Rane to submit a report on the
Maratha Caste.
On 26.02.2014 Rane Committee submitted its
report to the State and recommended that for the Maratha special reservation under
Article 15(4) and 16(4) of the Constitution of India be provided
On 09.07.2014 Maharashtra Ordinance
No.XIII of 2014 was promulgated providing for 16% reservation in favour of the Maratha
caste.
The Government resolution dated 15.07.2014
specifying the Maratha community as the community socially and economically
backward entitled
for 16% reservation was challenged
ON INDRA SAHWNEY
Thus greatest common measure of agreement in six
separate judgments delivered in
Indra Sawhney is that:
(i)
Reservation under Article 16(4) should not exceed
50%.
(ii)
For exceeding reservation beyond 50% extraordinary
circumstance as indicated in
paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which
extreme caution is to be exercised.
The judgment of Indra Sawhney has been
followed by this Court in a number of cases including at least in the following four Constitution
Bench judgments:
(1) Post
Graduate Institute of Medical Education & Research, Chandigarh and others
vs. Faculty Association and others;
(2) M.
Nagaraj and others vs. Union of India and others, 2006(8) SCC 212;
(3) Krishna
Murthy (Dr.) and others vs. Union of India and another 2010 (7) SCC 202
Which judgment though was considering reservation under Article 243D and 243T
has applied 50% ceiling as laid down in Balaji.
(4) The
Constitution
Bench judgment of this Court in Chebrolu Leela Prasad Rao & Ors.
vs. State of A.P. & Ors., 2020(7) Scale 162, reiterated the principle as
referred and reiterated that outer limit is 50% as specified in Indra Sawhney's
case.
Hence, there is no reason to re-visit the Indra Sawhney
ARTICLE
15 & 16
Article 15(1) and Article 16(1) of the Constitution are
the provisions engrafted to realise substantive equality where Articles 15(4)
and 16(4) are to realize the protective equality. Articles 15(1) and 16(1) are
the fundamental rights of the citizens whereas Articles 15(4) and 16(4) are the
obligations of the States
For finding out the objectives and the intention of the
framers of the Constitution we need to refer to Constituent Assembly debates on
draft
Article 10 (Article 16 of the Constitution) held
on 30.11.1948 (Book
2 Volume No,VII), Dr. Ambedkar's reply on draft Article 10 has been referred to
and quoted in all six judgments delivered in Indra Sahwney case
Article 16(4) is not an exception to Article
16(1). It is also held that Article 16(4) is a facet to Article
16(1) and permits reasonable classification as is permitted by Article 14
The 50% rule spoken in Balaji and affirmed in Indra
Sawhney is to fulfill the objective of equality as engrafted in Article
14 of which Articles 15 and 16 are facets. The Indra Sawhney itself gives
answer of the question. In paragraph 807 of Indra Sawhney held
that what
is more reasonable than to say that reservation under clause (4) shall not
exceed 50% of the appointment. 50% has been said to be reasonable and it is to attain
the objective of equality
To change the 50% limit is to have a
society which is not founded on equality but based on caste rule.
The time fleets, generations grow, society
changes, values
and needs also change by time. There can be no denial that law should change
with the changing time and changing needs of the society. However, the
proposition of law as noted above does not render any help to the submission of
Shri Rohtagi that in view of needs of the society which are changing 50% rule
should be given up
The constitutional measures of providing reservation,
giving concessions and other benefits to backward classes including socially and
educationally backward class are all affirmative measures. We have completed more than 73 years of
independence, the
Maharashtra is one of the
developed States in the country which has highest share in the
country's GST i.e. 16%, higher share in Direct Taxes-38% and higher
contribution to country's GDP, 38.88%. The goal of the Constitution framers was to
bring a caste-less society.
It has been laid down in Indra Sawhney that expression
“Backward Class” used in Article 16(4) is wider that the expression “Socially
and Educationally Backward Class” used in Article 15(5).
The 50 percent principle which was initially spoken of in
Balaji
having been approved in Indra Sawhney
Hence, the
proposition laid down in Indra Sahwney for Article 16 also applicable for
Article 15
ON
DPSP & FR
In Minerva Mills limited
and others versus Union of India and others, (1980) 3 SCC 625
The goals set out in Part IV have, therefore, to be achieved without the
abrogation of the means provided for by Part III. It is in this sense that Parts III
and IV together constitute the core of our Constitution and combine to form its
conscience. Anything that destroys the balance between the two parts will ipso
facto destroy an essential element of the basic structure of our Constitution.”
Article 15(4) and Article 16(4) of the Constitution are
nothing but steps in promoting and giving effect to policy under Article 38 of
the Constitution.
Hence, the
contention that Indra Sawhney judgment does not consider the impact of
Directive Principles of State Policy while interpreting Article 16 is thus not
correct
ST.
STEPHEN + TMA PAI + INDRA SAWHEY
St. Stephen's College case has put a cap of 50 percent which was
nothing but recognition of Indra Sawhney Principle. It is submitted that the Eleven Judge
Bench in T.M.A. Pai Foundation case has set aside the aforesaid cap of 50
percent
T.M.A. Pai foundation case was a judgment of this Court
interpreting Article 29 and 30 of the Constitution. Article 30 of the
Constitution gives a Fundamental Right to the minorities to establish and
administer educational institutions. The Right of minority is different and
distinct right as recognized in the Constitution.
In Society for
Un-aided Private Schools of Rajasthan versus Union of India and another,(2012)
6 SCC 1, where
this Court had occasion to consider Article 14, 15 & 16 as well as 21A of
the Constitution. Shri Kapadia, C.J., speaking for majority, held that reservation of 25
percent in unaided minority schools result in changing character of
schools holding that Section 12(1)(c) of Right to Education Act, 2009 violates right
conferred under minority school under Article 31
Hence, it is clear that there can be no reservation in
unaided minority schools referred in Article 30(1)
The 50 percent ceiling as put
by this Court in St. Stephen’s College case was struck off by T.M.A. Pai
Foundation case to give effect to content and meaning of Article 30. The striking of the cap of 50
percent with regard to minority institutions is an entirely different context and can have no
bearing with regard to 50 percent cap which has been approved in the
reservation under Article 16(4) in the Indra Sawhey’s case
Hence, the
Judgment of T.M.A PAI have no bearing on Indra Sawhey Case
ON 77TH
+ 81ST AMENDMENT
By the
77thConstitutional Amendment Act, 1995, Article 16(4A) of the Constitution. The above
Constitutional Amendment was brought to do away the law laid down by this Court in Indra Sawhney
that no reservation in promotion can be granted. By virtue of sub-clause 4A of Article
16 now, the reservation in promotion is permissible in favor of
Scheduled Caste, Scheduled Tribe. The ratio of Indra Sawhney to the above effect no
longer survives and the Constitutional provisions have to be give effect to.
By 81stConstitutional Amendment Act, 2000, by
which Article 16(4B). The above provision was also to undo the ratio laid down by the Indra Sawhney
judgment regarding carry forward vacancies. The Constitutional Amendment laid
down that in unfilled vacancies of year which was reserved shall be
treated as separate class of vacancies to be filled up in any succeeding year or years and such class vacancies
shall not be considered together with the vacancies of the year in which they
are being filled up for determine the ceiling of 50 percent
The constitutional
amendment itself recognized 50% ceiling limit
ON 103RD
CONSTITUTIONAL AMENDMENT 10%
Since, 103rd amendment is pending in W.P.
(Civil) No.55 of 2019, Janhit Abhiyan versus Union of India. Hence, court refrained
here
TEST
OF EXTRAORDINARY CIRCUMSTANCES
The extraordinary situations were only illustrative and cannot be
said to be exhaustive. The use of expression “on being out of the main stream of national
life”, is a social test, which also needs to be fulfilled for a case to be covered by
exception
In Union of India and
others versus Rakesh Kumar and others,(2010) 4 SCC 50
For the sake of argument, even if an analogy between Article 243-Dand
Article 16(4)was viable, a close reading of the Indra Sawhney decision will
reveal that even though an upper limit of 50% was prescribed for reservations
in public employment, the said decision did
recognise the need for exceptional treatment in some circumstances.
While 50% shall be the rule, it is necessary not to put out of
consideration certain extraordinary situations inherent in the great diversity
of this country and the people. It might happen that in farflung and remote
areas the population inhabiting those areas might, on account of their being
put of the mainstream of national life and in view of conditions peculiar to
and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In
doing so, extreme caution is to be exercised and a special case made out." 44. We believe that the case
of Panchayats in Scheduled Areas is a fit case that warrants exceptional
treatment with regard to reservations. The rationale behind imposing an upper
ceiling of 50% in reservations for higher education and public employment
cannot be readily extended to the domain of political representation at the
Panchayat-level in Scheduled Areas. With respect to education and employment,
parity is maintained between the total number of reserved and unreserved seats
in order to maintain a pragmatic balance between the affirmative action
measures and considerations of merit.”
In K. Krishna Murthy
and others versus Union of India and another, (2010) 7 SCC 202
Applied 50 percent ceiling in vertical reservation in favour of
Scheduled Caste/Scheduled Tribe/ Other Backward Class in context of local self
government. However, it was held that exception
can be made in order to safeguard the interest of Scheduled Tribes located in
Scheduled Area
Hence, the test of
extraordinary circumstances is only illustrative
GAIKWAD
COMMISSION REPORT & CASE OF EXTRAORDINARY CIRCUMSTANCES
It is clear that the Commission read the Constitution Bench
judgment of this Court in Nagaraj laying down that ceiling of 50% reservation
may be exceeded by showing quantifiable contemporary data relating
to the backwardness. The above reading of Constitution Bench
judgment by the Commission was wholly
incorrect. We may again notice the judgment of M.
Nagaraj in the above respect. M. Nagaraj was a case where Constitution
(Eighty-fifth Amendment) Act, 2001 inserting Article 16(4A) was challenged on
the ground that the said provision is unconstitutional and violative of basic
structure. Article 16(4A)
The Constitution Bench held that majority opinion in Indra
Sawhney has held that rule of 50% was a binding rule and not a mere rule of
prudence.
It is clear that both the Commission and the High Court treated the
extraordinary situations with regard to exceeding 50% for granting separate
reservation to Maratha, the fact that population of backward class is 85% and reservation
limit is only 50%. The above extraordinary circumstances as opined by the
Commission and approved by the High Court is not extra-ordinary situation as referred to
in paragraph 810 of Indra Sawhney judgment.
The Marathas are dominant forward class and are in the main
stream of National life. The above situation is not an extra-ordinary situation contemplated by
Indra Sawhney judgment and both Commission and the High Court fell in error in
accepting the above circumstances as extra-ordinary circumstance for exceeding
the 50 % limit.
The illustration
given by Dr. Ambedkar that supposing 70% posts are reserved and 30% may retain as unreserved,
can anybody say that 30% as open to general competition would be satisfactory
from point of view of giving effect to the first principle of equality, the
answer given by Dr. Ambedkar was in negative. Thus, Constituent Assembly by giving illustration
has already disapproved principle which is now propounded by the High Court.
Hence, neither the
Gaikwad Commission's report nor the judgment of the High Court has made out an
extra-ordinary situation in the case of Maratha where ceiling of 50% can be
exceeded.
The report of the Commission already held to contain no
extraordinary circumstances. While the foundation itself is unsustainable, the
formation of opinion by the State Government to grant separate reservation to
the Marathas exceeding 50 percent limit is unsustainable
Hence, the Act,
2018 as amended in 2019, granting separate reservation for Maratha community
has not made out any exceptional circumstances to exceed the ceiling of 50
percent reservation
ARTICLE
16(4) OF THE CONSTITUTION OF INDIA & MARATHA COMMUNITY
The objective behind clause (4) of Article 16 is sharing the power
by those backward classes of the society who had no opportunities in the past to be part of the State services or to
share the power of the State
The State, when provides reservation under Article 16(4)
by executive action or by legislation, condition precedent, that the backward class is
not adequately represented in the service has to be fulfilled
The Maratha community is only one community among the numerous
castes and communities in the State of Maharashtra.
The Maratha who have been competing in open category cannot claim
any post in the reserved category of 52 percent.
The representation of Marathas in public services in Grade-A, B, C
and D are adequate and satisfactory. One community bagging such number of posts in public
services is a matter of pride for the community and its representation in no
manner can be said to not adequate in public services. The Constitutional
pre-condition that backward class is not adequately represented is not
fulfilled
The Government committed an error in accepting the recommendation
without scrutinizing the report with regard to correct percentage of
representation of Marathas in services. The constitutional precondition as
mandated by Article 16(4) being not fulfilled with regard to Maratha class,
both the Gaikwad Commission’s report and consequential legislation are
unsustainable.
Hence, Maratha
class was not entitled for any reservation under Article 16(4) and grant of
reservation under Article 16(4) is unconstitutional and cannot be sustained
SOCIAL
AND EDUCATIONAL BACKWARDNESS OF MARATHA COMMUNITY
Three National Backward Classes Commissions
reports as noted above in the year 1955, 1980 and 2000, were the reports regarding the
status of the community as was found at the relevant time. Similarly, three State
Committee/Commissions in the year 1961, 2001 and 2008 also were reporting the status of
Marathas at the relevant time when the report was submitted. The term of the
reference of the Gaikwad Commission was not to examine as to whether earlier
reports of the National Commissions for Backward Classes or
Committee/Commissions of the State earlier in not recommending Maratha to be
included in OBC were correct or not.
Terms of reference which is a part of the
report clause (1) and clause (3) clearly indicate that the Commission was to
collect contemporaneous data. Quantifiable data collected by the State which have been referred in
the report were of the data collected period after 2014. The Commission’s
observations made in the report that it does not agree with the earlier reports
cannot be approved.
Though it is always open to the State to
collect relevant data to find out as to whether a particular
caste or community is to be included in the list of other backward classes or
excluded from the same despite any decision to the contrary taken earlier
When in earlier period of about 60 years, right from 1955
to 2008, repeatedly it was held that Maratha community is not backward class, Gaikwad Commission
ought to have applied the test that “happened thereafter that now
the Maratha community is to be included in OBC”.
In Ram Singh and
others vs. Union of India, (2015) 4 SCC 697 where National Backward Classes Commission has
rejected the claim of Jat to be included in other backward communities with
regard to several States. The National Commission recommended that Jat is politically dominant
class and need not to be included in OBC. The Union disregarding the said
report had issued a notification including Jat as OBC in the different States
in the Central List. It was challenged in this Court by way of writ petition.
This Court held that the report of National Backward Classes Commission could
not have been disregarded and ought to have been given due weight. This Court
held that Jat community is politically organised class which was
rightly not included in the category of other backward classes
We have completed more than 70 years of independence, all
governments have been making efforts and taking measures for overall
developments of all classes and communities. There is a presumption unless rebutted that
all communities and castes have marched towards advancement
When more people
aspire for backwardness instead of forwardness, the country itself stagnates
which situation is not in accord with constitutional objectives.
PRINCIPLES
TO INTERPRET CONSTITUTIONAL PROVISIONS
In R.S. Nayak vs.
A.R. Antulay, 1984(2) SCC 183
It was held that in order to ascertain true meaning of
literal words in the statute reference to the report are held legitimate
external aid.
In Minerva Mills Ltd.
and others vs. Union of India and others, (1980) 3 SCC 625. CJ, Y.V. Chandrachud speaking for the
Constitution Bench referred to speech of Law Minister made in the Parliament
and held that the constitutional provisions cannot be read contrary to its
proclaimed purpose as was stated by the Law Minister in the floor of the House
In Kalpana Mehta and
others vs. Union of India and others, (2018) 7 SCC 1, in which one of us Justice Ashok
Bhushan was also a member. In the 311 above case, the Constitution Bench
elaborately dealt with the role of Parliamentary Committee. One of the
questions which was referred to before the Constitution Bench to answer was “whether in a
litigation filed before this Court under Article 32 and our Court can refer to
and place reliance upon the report of the Parliamentary Standing Committee. The Constitution Bench referring to
earlier judgment of this Court in R.S. Nayak v. A.R. Antulay
Justice Ashok Bhushan in his concurring judgment has
observed that Committees of both Rajya Sabha and Lok Sabha are entrusted
with enormous duties and responsibilities in reference to
the functions of Parliament
It was held that parliamentary materials including
reports and other documents are permissible to be given as evidence in the
Court of law
Hence, it is well settled in this county that
Parliamentary Committee reports including speech given by the Minister in
the Parliament and the debates are relevant materials to
ascertain the intention of Parliament while constituting constitutional
provisions
102ND
AMENDMENT
|
Article 338B |
Article 342A |
Article 366(26C) |
|
-
There
shall be a Commission for the socially and educationally backward classes to
be known as the National Commission for Backward Classes -
The Commission shall have the power to
regulate its own procedure -
The Union and every State Government shall
consult the Commission on all major policy matters affecting the socially and
educationally backward classes. Statement of reasons behind Article 338B in order to safeguard
the interests of the socially and educationally backward classes more
effectively, it is proposed to create a
National Commission for Backward Classes with constitutional
status at par with the National Commission for Scheduled Castes
and the National Commission for Scheduled Tribes Act of 1993 v. Article 338B Prior to Constitution (One Hundred and Second Amendment),
there was already existing a National Commission for Backward Classes under
the National Commission for Backward Classes, Act, 1993(in short 1993 Act), which was a
statutory commission. The Act, 1993, indicates that functions of the
Commission were confined to only examine requests for inclusion or
exclusion from the list of backward classes. The list “was defined in Section 2C of the Act,
1993 to mean the list for reservation for appointment of backward class in
the services under the Government of India. Article 338B now inserted provides a much
larger and comprehensive role to the Commission. The Act, 1993 required the
Commission to give advice only to the Central Government. Article 338B
now requires the Commission to give advice both to the Central Government and
to the States The most important difference
which is now brought by Article 338B is sub-clause (9), which mandates that
every State Government to consult the Commission on all major policy
decisions affecting socially and educationally backward classes.
Sub-clause (9) is engrafted in mandatory form by using expression “shall”.
The States thus are now bound to consult the Commission on all major policy
matters affecting socially and educationally backward class Meaning of “consultation” The word ‘consultation’
occurring in sub-clause (9) is expression which has been used in several
Articles of the Constitution i.e. Article 124, 207, 233, 234, 320 and host of
other articles In Chandramouleshwar Prasad versus The Patna High Court and
others, (1969) 3 SCC 56 ‘consultation’ is not an empty
formality and it should be complete and effective In Union of India versus Shankalchand Himatlal Sheth and another,
(1977) 4 SCC 193, the Constitution Bench of this
Court had occasion to examine Article 222 and the expression ‘consult’ "The
word 'consult'
implies a conference of two or more persons or an impact of two or more minds
in respect of a topic in order to enable them to evolve a correct,
or at least, a satisfactory solution In Supreme Court Advocates on Record Association and others versus
Union of India, (1993) 4 SCC 441. It is clear that under Article
217(1), the process
of 'consultation' by the President is mandatory and this clause does not
speak of any discretionary 'consultation' with any other
authority as in the case of appointment of a Judge of the Supreme Court as
envisaged in Clause (2) of Article 124. The word 'consultation' is powerful
and eloquent with meaning, loaded with undefined intonation and it answers
all the questions and all the various tests including the test of primacy to
the opinion of the CJI |
The President may with respect to any State or Union
territory, and where it is a State, after consultation with the Governor
thereof, by public notification, specify the socially and educationally
backward classes which shall for the purposes of this
Constitution be deemed to be socially and educationally backward classes in
relation to that State or Union territory, as the case may be. Parliament may by law include in or exclude
from the Central List of socially and educationally backward classes specified in a notification issued
under clause (1) any socially and educationally backward class, but save as
aforesaid a notification issued under the said clause shall not be varied by
any subsequent notification Prior to Article 342A The regime which was invoked prior to insertion of
Article 342A was that central list was issued by the Central Government under
1993 Act and State lists were issued by State Governments. It was also open
for the State to request for exclusion or inclusion from the list of OBCs of
Central list. The same procedure is to issue even after insertion of
Article 342A with regard to Central list It is submitted that when Article 342A borrows the same scheme
which is clear from the fact that sub-clause (1) of Article 342A is para
mataria with Articles 341(1) and 342(1), it is clearly meant that power to identify
educationally and socially backward classes is only with the President but
after consultation with the Governor of the State. It is submitted that expression the “socially and
educationally backward classes” which shall for the purposes of this
Constitution be deemed to be socially and educationally backward classes in
relation to that State or Union territory” has to be given meaning and it is
only list issued by public notification under sub-clause (1) which is the
list of backward classes of a State or Union territory. No other list is
contemplated. Hence, the State has no authority or jurisdiction to
identify backward classes or issue any list that is so called State List. Further interpreting sub-clause
(2) of Article 342A, it is submitted that use of expression 352 “Central
List” in sub-clause (2) is only to refer the list specified by the
notification in sub-clause (1) of Article 342A and expression Central List
has been used in the above context. Intention of Parliament & comparison with Article 342 The Parliamentary intention was further discernible
that the list which was contemplated to be issued by President under Article 342A was only
the Central List which was to govern the services under the Government of
India and organizations under the Government of India. When
the Parliamentary intention is discernable and admissible as aid to statutory
interpretation, we see no reason not to interpret Article 342A in manner as
per the intention of the Parliament noticed above. We also need to reflect on the submission of petitioner
that the scheme under Article 342A has to be interpreted in accordance with
already existing scheme under Articles 341 and 342. There is no doubt that the Constitutional scheme under
Article 342A (1) and those of Article 341(1) and 342(1) are same but there is a
vast difference between the list of SC and ST as contemplated by Articles 341
and 342 of those of backward classes which now is contemplated under Article 342A |
socially and educationally backward
classes"
means such backward classes as are so deemed under article 342A for
the purposes of this Constitution |
ARTICLE
338B CONSULTATION WITH NATIONAL COMMISSION IS MANDATORY
The objective of sub-clause (9) of Article 338B is to
ensure that even the States did not take any major policy decision without
consulting the Commission who is competent to provide necessary advice and
solution keeping in view the larger interest of backward class. We thus are of
the considered opinion that the consultation by the State on all policy matters affecting the
socially and educationally backward classes is now mandatory as per
sub-clause(9) of Article 338B which mandatory requirement cannot be by-passed
by any State while the State takes any major policy decision.
The object of consultation is that ‘consultee’ shall
place the relevant material before person from whom ‘consultation’ is asked for
and advice and opinion given by consulting authority shall guide the authority who has asked for
consultation.
ARTICLE
342A v. SC/ ST LIST
The concept of Scheduled Castes was well known even before the
enforcement of the Constitution. There was already Scheduled Castes list in existence
when the Constitution was enforced. We may refer to Government of India Act,
1935, Schedule (1)
The Government of India has also issued a Scheduled
Castes List under the Government of India Scheduled Castes Order 1936. The Constitution
framers were, thus, well aware with the concept of Scheduled Casts and
Scheduled Tribes and hence the same scheme regarding SC
was continued in the Constitution by way of Article 341 of the Constitution
The expression 'backward class' does not find place in the Government of
India Act, 1935. The Constitution framers recognizing
that backward classes of citizens need affirmative action by the State to bring
them in the main stream of the society has engrafted a special provision for
backward classes. Under Article 16(4) the State was empowered to make any
provision for reservation of appointment or posts in favour of any backward
class of citizens not adequately represented in services
It is both the States and Union who are
entitled to identify backward classes of citizens and to
take measures. Indra Sawhney had, thus, issued directions to Union as well as
States to constitute permanent body for identification and for taking necessary
measures. The power to identify the backward classes was with the State and there are no
intentions that the power of the State as occurring in Articles 15(4) and 16(4)
in any manner has been taken away by the Constitutional amendment. The
power given to the State under Articles 15(4) and 16(4) are for the benefit of
backward classes of citizens. Any limitation or limitation of such power cannot
be readily inferred and has to be expressly provided by the Constitution.
ARTICLE
342A CENTRAL LIST
In pursuance of the direction issued by the Constitution
Bench of this Court in Indra Sawhney, the Parliament has enacted the National
Commission for Backward Classes Act, 1993. Section 2(c) of the Act defines 'lists'
The National Commission for Backward Classes Act, 1993 clearly
indicates that the Parliamentary enactment was related to services under the
Government of India and the Act, 1993 was not to govern or
regulate identification of backward classes by the concerned State.
The States had also enacted “State Legislation” constituting
Backward Classes Commission. In the State of Maharashtra, Maharashtra State Backward Classes
Commission, act was enacted in 2005. Along with passing of the Constitution
102nd Amendment, the National Commission for Backward Classes (Repeal) Act, 2018
was passed which received the assent of the
President of India on 14.08.2018.
Hence, the National Commission for Backward Classes by
the Constitutional 102nd Amendment was, thus, given constitutional status which
was available to the Commission which as a statutory Commission under 1993
enactment
During the Parliamentary Committee report it was
clarified and expressed that Constitutional amendment is only with regard to “Central
List”
Article 341(1) uses expression 'Scheduled
Castes' and the same expression finds place in subclause (2) when
the sub-clause (2) of the Article uses expression “list of Scheduled Castes” specified
in notification. Similarly, Article 342(2) also uses expression 'list of
Scheduled Tribes' specified in the notification.
Article 342A(2) uses an extra word “Central” before the expression
'List' of socially and educationally backward classes. It is, thus, clear that an extra word,
namely, 'Central' has been added in Article 342(2) before the expression 'list
of socially and educationally backward classes'. When the statute or Constitution
uses an additional word it has to be presumed that the use of additional
word is for a purpose and object and it is not superfluous or redundant.
The word 'Central' was used for a purpose and object, the
use of
the 'Central' was only with the intent to limit the list issued by the
President to Central services.
WHAT
WAS THE NEED OF 102ND AMENDMENT
Under the Government of India Act, 1935, the list of “the Scheduled Castes”
was to be specified by His Majesty in Council as per clause 26 of Schedule I of
the Government of India Act, 1935, which was also an executive function. The legal regime
of the list of Scheduled caste saw a sea change under the Constitution of India
as reflected in Article 341 and 342. What was the change brought by Constitution of India
regarding the list of Scheduled Caste can be well understood when we look into
the debates of the Constituent Assembly on Draft Articles 300A and 300B which
corresponds to Articles 341 and 342 of the Constitution of India.
The main object of the Constitutional provision was to “eliminate any
kind of political factors having a play in the matter of the disturbance in the
Scheduled so published by the President.”. We
have to read the same objective for change of the statutory regime of backward
class under 1993 Act into Constitutional regime by Article 342A. To
eliminate any kind of political factor to play with regard to list of backward
class issued by Government of India from time to time under 1993 Act,
the Constitution Amendment was brought as was brought by Constituent Assembly
by Draft Article 341 and 342. Now, by virtue of Article 342A, the list once issued
by the President under Article 342A(1) cannot be tinkered with except by way of
Parliamentary enactment
A laudable objective of keeping away political pressure
in amending the list of Backward class issued by President once has been
achieved, hence, it cannot be said that the 102nd Constitutional Amendment was
without any purpose if the power of State to identify Backward classes in their
State was to remain as it is
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