Holding

The 50% ceiling on reservations as laid down in Indra Sawhney is a binding constitutional principle, and the Maharashtra SEBC Act 2018 granting reservation to Marathas is ultra vires as it exceeds this limit without extraordinary circumstances; further, the 102nd Amendment empowers the President alone to identify SEBCs for constitutional purposes, but states retain power to make reservations.

Summary

The State of Maharashtra enacted the Maharashtra State Reservation (of Seats for Admission in Educational Institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018, granting 12% and 13% reservation to the Maratha community in educational institutions and public services, which exceeded the 50% ceiling on reservations established by the nine-judge bench in Indra Sawhney v. Union of India. The Supreme Court considered whether the Indra Sawhney judgment required reconsideration, whether the Act was justified by exceptional circumstances, and whether the Constitution (102nd Amendment) Act, 2018 deprived states of power to identify backward classes. The Court held that the 50% ceiling is binding and does not require reconsideration, and that no extraordinary circumstances existed to breach it. The Court found that the Maratha community is not socially and educationally backward and that the Act violated the principle of equality. The SEBC Act was struck down as ultra vires. On the 102nd Amendment, the majority held that the President alone can identify SEBCs for constitutional purposes, but states retain power to make reservations; the amendment was upheld as constitutional.

Issues considered

Whether judgment in case of Indra Sawhney v. Union of India needs to be referred to larger bench or require re-look in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.
Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney's case.
Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney.
Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power.
Whether, States power to legislate in relation to 'any backward class' under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26C) of the Constitution of India.
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.

Legislation cited

Constitution (102nd Amendment) Act, 2018
Constitution (Eighty-first Amendment) Act, 2000
Constitution of Indias. Article 14, s. Article 15, s. Article 15(4), s. Article 15(5), s. Article 16, s. Article 16(1), s. Article 16(4), s. Article 16(4A), s. Article 16(4B), s. Article 338B, s. Article 342A, s. Article 366(26C), s. Article 368
Maharashtra Private Professional Educational Institutions (Reservation of seats for admission for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes) Act, 2006
Maharashtra State Public Services Reservation for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category and Other Backward Classes) Act, 2001
Maharashtra State Reservation (of Seats for Admission in Educational Institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018s. Section 2(j), s. Section 4(1)(a), s. Section 4(1)(b)

Subjects

ReservationConstitution of IndiaSocially and Educationally Backward ClassesMaratha community50% ceilingIndra Sawhney102nd AmendmentFederalismBasic StructureEqualityAffirmative Action

Judgment

[2021] 15 S.C.R. 715 715

DR. JAISHRI LAXMANRAO PATIL A
v.
THE CHIEF MINISTER & ORS.
(Civil Appeal No.3123 of 2020)
MAY 05, 2021 B
[ASHOK BHUSHAN, L. NAGESWARA RAO,
S. ABDUL NAZEER, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
Reservation – Constitution of India – Arts. 15 and 16 –
C
Constitution (Eighty-first Amendment) Act, 2000 – Socially and
educationally backward class (SEBC) – Reservation in favour of
backward class citizens – On 16.11.1992, a nine-Judge Constitution
Bench of Supreme Court delivered a judgment in Indra Sawhney
case laying down law pertaining to principle of reservation under
the Constitution – Six separate judgments were delivered in the case D
including one judgment of Justice Jeevan Reddy, which was for
himself and three other judges – Whether judgment in case of Indra
Sawhney needs to be referred to larger bench or require re-look by
the larger bench in the light of subsequent Constitutional
Amendments, judgments and changed social dynamics of the society
E
etc. – Held, No – Held [per Ashok Bhushan, J. (for himself and S.
Abdul Nazeer, J.)] with Ravindra Bhat, J., L. Nageswara Rao, J.
and Hemant Gupta, J. concurring : The greatest common measure
of agreement in six separate judgments delivered in Indra Sawhney
is: (i) Reservation under Article 16(4) should not exceed 50%. (ii)
For exceeding reservation beyond 50%, extra-ordinary F
circumstances as indicated in paragraph 810 of Justice Jeevan
Reddy should exist for which extreme caution is to be exercised –
The 50% rule affirmed in Indra Sawhney is to fulfill the objective of
equality as engrafted in Article 14 of which Articles 15 and 16 are
facets – 50% is reasonable and it is to attain the object of equality
G
– To change the 50% limit is to have a society which is not founded
on equality but based on caste rule – The cap on percentage of
reservation as laid down in Indra Sawhney is with the object of
striking a balance between the rights under Article 15(1) and 15(4)
as well as Articles 16(1) and 16(4) – The cap on percentage is to
H
715
716 SUPREME COURT REPORTS [2021] 15 S.C.R.

A achieve principle of equality and with the object to strike a balance
which cannot be said to be arbitrary or unreasonable – The
Constitution (Eighty-first Amendment) Act, 2000 by which sub-
clause (4B) was inserted in Art.16 makes it clear that ceiling of
50% “has now received constitutional recognition” – The judgment
of Indra Sawhney has stood the test of the time and has never been
B
doubted by any judgment of Supreme Court – No substance in any
of the grounds urged for revisiting and referring the judgment of
Indra Sawhney to a larger Bench – Held (per S. Ravindra Bhat, J.
supplementing, with Hemant Gupta, J. concurring therewith): The
ceiling of 50% with the “extraordinary circumstances” exception,
C is the just balance that allows the State sufficient latitude to ensure
meaningful affirmative action, to those who deserve it, and at the
same time ensure that the essential content of equality, and its
injunction not to discriminate on various proscribed grounds (caste,
religion, sex, place of residence) is retained – To dilute the 50%
benchmark further, would be to effectively destroy the guarantee
D
of equality, especially the right not to be discriminated against on
the grounds of caste (under Articles 15 and 16).
Reservation – Constitution of India – Arts. 15 and 16 – Socially
and educationally backward class (SEBC) – Reservation in favour
of backward class citizens – Identification of Maratha community
E as SEBCs – State Government set up a backward class commission
to ascertain the social and educational status of the community –
By its report (the Gaikwad Commission Report), the Commission
recommended that the Maratha community be declared as SEBC –
This led to enactment of the SEBC Act, 2018 giving effect to the
F recommendations of the Gaikwad Commission, resulting in
reservation in favour of that community; consequent to which, the
aggregate reservations exceeded 50% – Whether the SEBC Act,
2018 as amended in 2019 granting reservation for the Maratha
community in addition to 50% social reservation in educational
institutions and in public services and posts is covered by exceptional
G circumstances as contemplated by Constitution Bench in Indra
Sawhney’s case – Held, No – The High Court found existence of the
extra-ordinary situations with regard to exceeding 50% ceiling in
respect to grant of separate reservation to Maratha because the
population of backward class is 80% and reservation limit is only
H 50%, and containing the Maratha in pre-existing reservation for
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 717
& ANR.

OBC shall not be justice to them, which circumstances is not covered A
under the parameters indicated in Indra Sawhney’s case as extra-
ordinary circumstance to breach 50% ceiling – No extraordinary
circumstances made out in granting separate reservation of Maratha
Community by exceeding the 50 per cent ceiling limit of reservation
– Maharashtra State Reservation (of Seats for Admission in
B
Educational Institutions in the State and for appointments in the
public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018.
Reservation – Constitution of India – Arts. 15 and 16 –
Socially and educationally backward class (SEBC) – Reservation
in favour of backward class citizens – Representation of Marathas C
in State services – Whether the State Government on the strength of
Maharashtra State Backward Commission Report chaired by M.C.
Gaikwad made out a case of existence of extraordinary situation
and exceptional circumstances in the State to fall within the exception
carved out in the judgment of Indra Sawhney – Held, No – The D
Constitution pre-condition for providing reservation as mandated
by Article 16(4) is that the backward class is not adequately
represented in the public services – The Commission labored under
misconception that unless Maratha community is not represented
equivalent to its proportion, it is not adequately represented – Indra
Sawhney has categorically held that what is required by the State E
for providing reservation under Article 16(4) is not proportionate
representation but adequate representation – 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 – Sufficient and F
adequate representation of Maratha community in public services
is indicator that they are not socially and educationally backward.
Reservation – Constitution of India – Arts. 15, 16 and Art.342A
r/w Art.366(26C) – Constitution 102nd Amendment – Socially and
educationally backward class (SEBC) – Reservation in favour of G
backward class citizens – Whether the Constitution 102nd Amendment
deprives the State Legislature of its power to enact a legislation
determining the socially and economically backward classes and
conferring the benefits on the said community under its enabling
power and Whether, States power to legislate in relation to “any
H
718 SUPREME COURT REPORTS [2021] 15 S.C.R.

A backward class” under Articles 15(4) and 16(4) is anyway abridged
by Article 342A read with Article 366(26C) of the Constitution –
Held (per Ravindra Bhat, J., with L. Nageswara Rao, J. and Hemant
Gupta, J. concurring) (majority opinion): The two points of reference
are inter-related – By introduction of Articles 366(26C) and 342A
through the 102nd Constitution Amendment, the President alone, to
B
the exclusion of all other authorities, is empowered to identify SEBCs
and include them in a list to be published under Article 342A (1),
which shall be deemed to include SEBCs in relation to each State
and Union Territory for the purposes of the Constitution – The States
can, through their existing mechanisms, or even statutory
C commissions, only make suggestions to the President or the
Commission under Art.338B, for inclusion, exclusion or modification
of castes or communities, in the list to be published under
Art.342A(1) – The States’ power to make reservations, in favour of
particular communities or castes, the quantum of reservations, the
nature of benefits and the kind of reservations, and all other matters
D
falling within the ambit of Arts.15 and 16 – except with respect to
identification of SEBCs, remains undisturbed – Held (per L.
Nageswara Rao, J. supplementing, with Hemant Gupta, J.
concurring therwith): There is only one list that can be issued by
the President specifying the socially and educationally backward
E classes and only those classes are treated as socially and
educationally backward classes for the purposes of the Constitution
– It is apparent from Article 342A(1) and (2) that there is no scope
for any list of socially and educationally backward classes, other
than the list to be notified by the President – Held [per Ashok
Bhushan, J. (for himself and S. Abdul Nazeer, J.)](minority opinion):
F
Parliamentary intention discernible from Select Committee report
and statement of Minister of Social Justice and Empowerment is
that the intention of the Parliament for bringing Constitutional
amendment was not to take away the power of the State to identify
backward class in the State – The use of word ‘Central’ in Article
G 342A(2) was only with the intent to limit the list issued by the
President to Central services.
Reservation – Constitution of India – Arts. 15(4) and 16(4) –
Socially and educationally backward class (SEBC) – Reservation
in favour of backward class citizens – Constitution (102nd
H Amendment) Act challenged, on ground that it violated the basic
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 719
& ANR

structure, or essential features of the Constitution – Article 342A of A
the Constitution was brought by the Constitution 102nd Amendment
– Whether, Article 342A 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 – Held
[per Ashok Bhushan, J. (for himself and S. Abdul Nazeer, J.)]:
B
Article 342A was brought by Constitution 102nd Amendment to give
constitutional status to National Backward Classes Commission and
for publication of list by the President of socially and educationally
backward classes which was to be Central List for governing
employment under Government of India and the organisations under
it – The Constitution 102nd Amendment Act does not violate any C
basic feature of the Constitution and is constitutionally valid – Held
(per Ravindra Bhat, J., with L. Nageswara Rao, J. and Hemant
Gupta, J. concurring): Alteration of the content of state legislative
power in an oblique and peripheral manner would not constitute a
violation of the concept of federalism – It is only if the amendment
D
takes away the very essence of federalism or effectively divests the
federal content of the constitution, and denudes the states of their
effective power to legislate or frame executive policies (co-extensive
with legislative power) that the amendment would take away an
essential feature or violate the basic structure of the Constitution –
Applying such a benchmark, the power of identification of SEBCs E
hitherto exercised by the States and now shifted to the domain of
the President (and for its modification, to Parliament) by virtue of
Article 342A does not in any manner violate the essential features
or basic structure of the Constitution – The 102nd Amendment is
also not contrary to or violative of proviso to Article 368 (2) of the
F
Constitution – Article 342A of the Constitution by denuding States
power to legislate or classify in respect of “any backward class of
citizens” does not affect or damage the federal polity and does not
violate the basic structure of the Constitution of India.
Maharashtra State Reservation (of seats for admission in
educational institutions in the State and for appointments in the G
public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018 – s.2(j) – Held:
s.2(j) of the Act, 2018 insofar as it declares Maratha community
Educationally and Socially Backward Category is ultra vires to the
Constitution and struck down. H
720 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Maharashtra State Reservation (of seats for admission in
educational institutions in the State and for appointments in the
public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018 – s.4(1)(a) –
Held: s.4(1)(a) of Act, 2018 as amended by Act, 2019 insofar as it
grants reservation under Art.15(4) to the extent of 12% of total
B
seats in educational institutions including private institutions whether
aided or unaided by the State, other than minority educational
institutions, is ultra vires to the Constitution and struck down –
Constitution of India – Art.15(4).
Maharashtra State Reservation (of seats for admission in
C educational institutions in the State and for appointments in the
public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018 – s.4(1)(b) –
Held: s.4(1)(b) of Act, 2018 as amended by Act, 2019 granting
reservation of 13% to the Maratha community of the total
D appointments in direct recruitment in public services and posts under
the State, is ultra vires to the Constitution and struck down.
In the instant matters, questions of seminal importance
relating to contours and extent of special provisions for the
advancement of socially and educationally backward class (SEBC)
E of citizens as contemplated under Article 15(4) of the Constitution
and contours and extent of provisions of reservation in favour of
the backward class citizens under Article 16(4) of the Constitution,
arose for consideration.
The State of Maharashtra promulgated an Ordinance in the
F year 2014, which granted reservation to the Maratha community
in public employment and in the field of education. Later, the
Ordinance was given the shape of an Act, which was challenged
before the High Court. The court stayed the operation of the
enactment. The State Government then set up a backward class
commission to ascertain the social and educational status of the
G community. By its report dated 13.11.2018 (the Gaikwad
Commission Report), the Commission recommended that the
Maratha class of citizens be declared as a Socially and
Educationally Backward Class (“SEBC”). This soon led to the
enactment of the Maharashtra State Reservation (of Seats for
H Admission in Educational Institutions in the State and for
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 721
& ANR

appointments in the public services and posts under the State) A
for Socially and Educationally Backward Classes (SEBC) Act,
2018, giving effect to the recommendations of the Gaikwad
Commission, resulting in reservation in favour of that community;
consequent to which, the aggregate reservations exceeded 50%.
Subsequently, writ petitions were filed before the Bombay B
High Court, challenging the identification of Marathas as SEBCs,
the conclusions of the Commission, which culminated in its
adoption by the State of Maharashtra and enactment of the SEBC
Act, the quantum of reservations, and the provisions of the Act
itself, on diverse grounds. By the impugned judgment, the High
Court turned down the challenge and upheld the identification of C
Marathas as SEBCs, and further upheld the reasons presented
before it, that extraordinary circumstances existed, warranting
the breach of the 50% mark, which was held to be the outer limit
in the nine-judge decision of this court in Indra Sawhney case.
Six separate judgments were delivered in the case including one D
judgment of Justice Jeevan Reddy, which was for himself and
three other judges. The Constitution (102nd Amendment) Act,
2018 also came to be challenged before this Court, on the ground
that it violated the basic structure, or essential features of the
Constitution. The Constitution (102nd Amendment) Act, 2018
was brought into force on 15.08.2018 adding Article 338B, 342A E
and 366(26C).
The following six questions accordingly arose for
consideration before this Court:
1. Whether judgment in case of Indra Sawhney needs to be F
referred to larger bench or require re-look by the larger bench
in the light of subsequent Constitutional Amendments, judgments
and changed social dynamics of the society etc.?
2. Whether Maharashtra State Reservation (of seats for
admission in educational institutions in the State and for G
appointments in the public services and posts under the State)
for Socially and Educationally Backward Classes (SEBC) Act,
2018 as amended in 2019 granting reservation for Maratha
community in addition to 50% social reservation is covered by
exceptional circumstances as contemplated by Constitution
Bench in Indra Sawhney’s case? H
722 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 3. Whether the State Government on the strength of
Maharashtra State Backward Commission Report chaired by
M.C. Gaikwad has made out a case of existence of extraordinary
situation and exceptional circumstances in the State to fall within
the exception carved out in the judgment of Indra Sawhney?
B 4. Whether the Constitution One Hundred and Second
Amendment deprives the State Legislature of its power to enact
a legislation determining the socially and economically backward
classes and conferring the benefits on the said community under
its enabling power?
5. Whether, States power to legislate in relation to “any
C
backward class” under Articles 15(4) and 16(4) is anyway abridged
by Article 342(A) read with Article 366(26C) of the Constitution
of India?
6. Whether, Article 342A of the Constitution abrogates
States power to legislate or classify in respect of “any backward
D class of citizens” and thereby affects the federal policy / structure
of the Constitution of India?
Disposing of the matters, the Court
per Ashok Bhushan, J. (for himself and for S. Abdul Nazeer,
J.)
E
HELD:1.1. The greatest common measure of agreement
in six separate judgments delivered in Indra Sawhney is: (i)
Reservation under Article 16(4) should not exceed 50%. (ii)For
exceeding reservation beyond 50%, extra-ordinary circumstances
as indicated in paragraph 810 of Justice Jeevan Reddy should
F exist for which extreme caution is to be exercised. [Para 444][940-
C-D]
1.2. 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. 50% is reasonable and
G it is to attain the object of equality. To change the 50% limit is to
have a society which is not founded on equality but based on
caste rule.
1.3. The cap on percentage of reservation as has been laid
down by Constitution Bench in Indra Sawhney is with the object
H of striking a balance between the rights under Article 15(1) and
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 723
& ANR

15(4) as well as Articles 16(1) and 16(4). The cap on percentage A
is to achieve principle of equality and with the object to strike a
balance which cannot be said to be arbitrary or unreasonable.
[Para 444][940-D-F]
1.4. Providing reservation for advancement of any socially
and educationally backward class in public services is not the B
only means and method for improving the welfare of backward
class. The State ought to bring other measures including
providing educational facilities to the members of backward class
free of cost giving concession in fee, providing opportunities for
skill development to enable the candidates from the backward
class to be self-reliant. [Para 444][940-G] C

1.5. There can be no quarrel that society changes, law
changes, people changes but that does not mean that something
which is good and proven to be beneficial in maintaining equality
in the society should also be changed in the name of change alone.
[Para 444][940-H; 941-A] D

1.6. When the Constitution Bench in Indra Sawhney held
that 50% is upper limit of reservation under Article 16(4), it is
the law which is binding under Article 141 and to be implemented.
[Para 444][941-A-B]
E
1.7. The Constitution Bench judgment in Indra Sawhney is
also fully applicable in reference to Article 15(4) of the
Constitution of India. [Para 444][941-B]
1.8. The setting aside of 50% ceiling by eleven Judge
Bench in T.M.A. Pai Foundation case as was laid down by St. F
Stephen’s case i.e. 50% ceiling in admission in aided Minority
Instructions has no bearing on the principle of 50% ceiling laid
down by Indra Sawhney with respect to reservation. The judgment
of T.M.A. Pai was in reference to rights of minority under Article
30 and is not relevant for Reservation under Articles 16(4) and
15(4) of the Constitution. [Para 444][941-C-D] G
1.9. The Constitution (Eighty-first Amendment) Act, 2000
by which sub-clause (4B) was inserted in Article 16 makes it clear
that ceiling of 50% “has now received constitutional recognition”.
[Para 444][941-D]
H
724 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 1.10. The extraordinary situations indicated in paragraph
810 were only illustrative and cannot be said to be exhaustive.
However, it cannot be said that paragraph 810 provided only a
geographical test. The use of expression “on being out of the
main stream of national life”, is a social test, which also needs to
be fulfilled for a case to be covered by exception. [Para 444][941-
B E-F]
1.11. There is no substance in any of the 10 grounds urged
for revisiting and referring the judgment of Indra Sawhney to a
larger Bench. [Para 444][941-F-G]

C 1.12. What was held by the Constitution Bench in Indra
Sawhney on the relevance and significance of the principle of stare
decisis is clearly binding. The judgment of Indra Sawhney has
stood the test of the time and has never been doubted by any
judgment of this Court. The Constitution Bench judgment of this
Court in Indra Sawhney neither needs to be revisited nor referred
D to a larger Bench for consideration. [Para 444][941-G-H]
1.13. The Constitution Bench in M. Nagaraj does not
contain any ratio that ceiling of 50% reservation may be exceeded
by showing quantifiable contemporary data relating to
backwardness. The Commission has completely misread the ratio
E of the judgment, when the Commission took the view that on the
quantifiable data ceiling of 50% can be breached. [Para 444][942-
A-B]
1.14. The Commission and the High Court found existence
of the extra-ordinary situations with regard to exceeding 50%
ceiling in respect to grant of separate reservation to Maratha
F
because the population of backward class is 80% and reservation
limit is only 50%, containing the Maratha in pre-existing
reservation for OBC shall not be justice to them, which
circumstances is not covered under the parameters indicated in
Indra Sawhney’s case as extra-ordinary circumstance to breach
G 50% ceiling. [Para 444][942-C]
1.15. No extraordinary circumstances were made out in
granting separate reservation of Maratha Community by
exceeding the 50 per cent ceiling limit of reservation. The Act,
2018 violates the principle of equality as enshrined in Article 16.
H The exceeding of ceiling limit without there being any extra-
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 725
& ANR

ordinary circumstances clearly violates Article 14 and 16 of the A
Constitution which makes the enactment ultra vires. [Para
444][942-D-E]
1.16. The proposition is well settled that Commissions’
reports are to be looked into with deference. However, one of
the parameter of scrutiny of Commission’s report as approved B
by this Court is that on the basis of data and materials referred to
in the report whether conclusions arrived by the Commission
are justified. [Para 444][942-E-F]
1.17. The measures taken under Article 15(4) and 16(4)
can be examined as to whether they violate any constitutional C
principle, and are in conformity with the rights under Article 14,
15 and 16 of the Constitution. The scrutiny of measures taken by
the State, either executive or legislative, thus, has to pass test of
the constitutional scrutiny. [Para 444][942-F-G]
1.18. The word ‘adequate’ is a relative term used in relation D
to representation of different caste and communities in public
employment. The objective of Article 16(4) is that backward class
should also be put in mainstream to enable to share power of the
State by affirmative action. To be part of public service, as accepted
by the Society of today, is to attain social status and play a role in
governance. [Para 444][942-G-H; 943-A] E

1.19. The representation of Marathas in public services in
Grade A, B, C and D comes to 33.23%, 29.03%, 37.06% and
36.53% computed from out of the open category filled posts, is
adequate and satisfactory representation of Maratha community.
One community bagging such number of posts in public services F
is a matter of pride for the community and its representation in
no manner can be said to not adequate in public services. [Para
444][943-B-C]
1.20. The Constitution pre-condition for providing
reservation as mandated by Article 16(4) is that the backward G
class is not adequately represented in the public services. The
Commission labored under misconception that unless Maratha
community is not represented equivalent to its proportion, it is
not adequately represented. Indra Sawhney has categorically held
H
726 SUPREME COURT REPORTS [2021] 15 S.C.R.

A that what is required by the State for providing reservation under
Article 16(4) is not proportionate representation but adequate
representation. [Para 444][943-C-D]
1.21. The constitutional precondition as mandated by
Article 16(4) being not fulfilled with regard to Maratha class, both
B the Gaikwad Commission’s report and consequential legislation
are unsustainable. [Para 444][943-E]
1.22. Having disapproved the grant of reservation under
Article 16(4) to Maratha community, the said decision becomes
relevant and shall certainly have effect on the decision of the
C Commission holding Maratha to be socially and educationally
backward. Sufficient and adequate representation of Maratha
community in public services is indicator that they are not socially
and educationally backward. From the facts and figures as noted
by Gaikwad Commission in its report regarding representation
of Marathas in public services, the percentage of Marathas in
D admission to Engineering, Medical Colleges and other
disciplines, their representation in higher academic posts, it is
seen that conclusion drawn by the Commission is not supportable
from the data collected. The data collected and tabled by the
Commission as noted in the report clearly proves that Marathas
E are not socially and educationally backward class. [Para 444][943-
F-H; 944-A]
1.23. The elementary principle of interpreting the
Constitution or statute is to look into the words used in the
statute, when the language is clear, the intention of the Legislature
F is to be gathered from the language used. The aid to
interpretation is resorted to only when there is some ambiguity
in words or expression used in the statute. The rule of
harmonious construction, the rule of reading of the provisions
together as also rule of giving effect to the purpose of the statute,
and few other principles of interpretation are called in question
G when aids to construction are necessary in particular context.
[Para 444][944-B-C]
1.24. The shift from literal rule to purposive and objective
interpretation of a constitutional document is adopted since the
Constitution is not to be interpreted in static and rigid manner,
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DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 727
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the Constitution is an organic and living document which needs A
to be interpreted with cardinal principals and objectives of the
Constitution. The shift from literal to purposive method of
interpretation has been now more and more, being adopted for
interpreting a constitutional document. [Para 444][944-D-E]
1.25. The law is well settled in this country that B
Parliamentary Committee reports including speech given by the
Minister in the Parliament are relevant materials to ascertain
the intention of Parliament while construing constitutional
provisions. [Para 444][944-E-F]
1.26. The consultation by the State on all policy matters C
affecting the socially and educationally backward classes is now
mandatory as per sub-clause (9) of Article 338B which mandatory
requirement cannot be by-passed by any State while the State
takes any major policy decision. Sub-clause (9) of Article 338B
uses the expression ‘consultation’. It is true that the expression
‘consultation’ is not to be read as concurrence but the D
‘consultation’ has to be effective and meaningful. The object of
consultation is that ‘consultee’ shall place the relevant material
before person from whom ‘consultation’ is asked for and advice
and opinion given by consulting authority shall guide the authority
who has asked for consultation. [Para 444][944-F-H] E
1.27. It is, thus, clear as sun light that Parliamentary
intention discernible from Select Committee report and statement
of Minister of Social Justice and Empowerment is that the
intention of the Parliament for bringing Constitutional amendment
was not to take away the power of the State to identify backward F
class in the State. [Para 444][945-A-B]
1.28. When the Parliamentary intention is discernable and
admissible as aid to statutory interpretation, there is no reason
not to interpret Article 342A in manner as per the intention of
the Parliament noticed above. [Para 444][945-B] G
1.29. The word ‘Central’ in Article 342A (2) was used for
purpose and object. The use of ‘Central’ was only with the intent
to limit the list issued by the President to Central services. It is
well settled rule of interpretation that no word in a statute or
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728 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Constitution is used without any purpose. Word ‘Central’ has to
be given meaning and purpose. [Para 444][945-C-D]
1.30. When Article 342A is interpreted to mean that Article
342A refers to ‘Central List’ which is prepared for services under
the Government of India and organisations under the Government
B of India, the definition given under Article 366(26C) which
specifically refer to Article 342A has to be read together and list
of backward classes which is not Central List shall not be
governed by the definition under Article 366(26C). Since, (26C)
has been inserted in the context of Article 342A, if the context is
list prepared by the State and it is State List, definition under
C (26C) shall not govern. [Para 444][945-D-F]
1.31. Article 342A was brought by Constitution 102nd
Amendment to give constitutional status to National Backward
Classes Commission and for publication of list by the President
of socially and educationally backward classes which was to be
D Central List for governing employment under Government of
India and the organisations under it. [Para 444][945-F-G]
1.32. The Constitution 102nd Amendment Act does not
violate any basic feature of the Constitution. The constitutional
validity of Constitution (One Hundred and second Amendment)
E Act is upheld. [Para 444][945-G-H]
2.1. Section 2(j) of the Act, 2018 insofar as it declares
Maratha community Educationally and Socially Backward
Category is held to be ultra vires to the Constitution and struck
down. [Para 444][946-C-D]
F
2.2. Section 4(1)(a) of Act, 2018 as amended by Act, 2019
insofar as it grants reservation under Article 15(4) to the extent
of 12% of total seats in educational institutions including private
institutions whether aided or unaided by the State, other than
minority educational institutions, is declared ultra vires to the
G Constitution and struck down. [Para 444][946-D-E]
2.3. Section 4(1)(b) of Act, 2018 as amended by Act, 2019
granting reservation of 13% to the Maratha community of the
total appointments in direct recruitment in public services and
posts under the State, is held to be ultra vires to the Constitution
H and struck down. [Para 444][946-F]
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 729
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T.M.A. Pai Foundation and others v. State of Karnataka A
and others, (2002) 8 SCC 481 : [2002] 3 Suppl. SCR
587 and S.V.Joshi v. State of Karnataka, (2012) 7 SCC
41 – distinguished.
M. Nagraj and others v. Union of India & Ors. (2006)
8 SCC 212 and M.R. Balaji v. State of Mysore, AIR B
1963 SC 649 : [1963] Suppl. SCR 439 – explained.
Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 : [1965]
SCR 908 – held applicable.
Ram Singh and others v. Union of India, (2015) 4 SCC
697 : [2015] 5 SCR 670 – affirmed. C

Indra Sawhney v. Union of India 1992 Suppl. (3) SCC
217 : [1992] 2 Suppl. SCR 454]; Jarnail Singh and
others v. Lachhmi Narain Gupta and others, 2018 (10)
SCC 396 : [2018] 10 SCR 663; Barium Chemicals ltd.
and another v. The Company Law Board and others, D
AIR 1967 SC 295 : [1966] Suppl. SCR 311; Dinesh B.
v. Union of India and others, T. Devadasan v. Union of
India and another, AIR (1964) SC 179 : [1964] SCR
680; State of Punjab v. Hiralal and others, (1970) 3
SCC 567 : [1971] 3 SCR 267; State of Kerala and E
others v. N.M. Thomas and others, (1976) 2 SCC 310 :
[1976] 1 SCR 906; Akhil Bharatiya Soshit Karamchari
Sangh, (Railway) v. Union of India and others, (1981)
1 SCC 246 : [1981] 2 SCR 185; K.C. Vasant Kumar
and another v. State of Karnataka, (1985) Supp. (1)
SCC 714; Union of India and others v. Rakesh Kumar F
and others, (2010) 4 SCC 50: [2010] 1 SCR 483; Vikas
kishanrao Gawali v. The State of Maharashtra, (2021)
SCC Online SC 170; St. Stephen’s College v. University
of Delhi, (1992) 1 SCC 558 : [1991] 3 Suppl. SCR 121;
Kalpana Mehta and others v. Union of India and others, G
(2018) 7 SCC 1 : [2018] 4 SCR 1; Rajnarain Singh v.
Chairman, Patna Administration Committee, Patna and
another, AIR 1954 SC 569 : [1955] SCR 290; Re Delhi
Laws Act, 1912, Ajmer-Merwara (Extension of Laws)
Act, 1947 v. Part ‘C’ States(Laws) Act, 1950, AIR 1951
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730 SUPREME COURT REPORTS [2021] 15 S.C.R.

A SC 332 : [1951] SCR 747; General Manager, Southern
Railway, Personnel Officer (Reservation), Southern
Railway v. Rangachari, AIR 1962 SC 36 :[1962]
SCR 586; State of Kerala and another v. N.M. Thomas
and others, 1976 (2) SCC 310 : [1976] 1 SCR 906; T.
Devadasn v. Union of India and another, AIR 1964 SC
B
179 : [1964] SCR 680; Akhil Bharatiya Sochit
Karamchari Sangh (Railway) Represented by its
Assistant General Secretary on behalf of the Association
v. Union of India and others, (1981) 1 SCC 246 : [1981]
2 SCR 185; K.C. Vasanth Kumar and another v. State
C of Karnataka, 1985 (Supp) SCC 714 : [1985] Suppl.
SCR 352; State of Punjab and Hira Lal and others,
1970 (3) SCC 567 : [1971] 3 SCR 267; N.M. Thomas,
Akhil Bharatiya Karamchari Sangh and State of Punjab
S.V. Joshi and others v. State of Karnataka and others,
(2012) 7 SCC 41; Post Graduate Institute of Medical
D
Education & Research, Chandigarh and others v. Faculty
Association and others; Chebrolu Leela Prasad Rao &
Ors. v. State of A.P. & Ors., 2020 (7) SCALE 162; Smt.
Indira Nehru Gandhi v. Raj Narain, (1975) Suppl. SCC
1 : [1976] SCR 347; His Holiness Kesavananda Bharati
E Sripadagalvaru v. State of Kerala and another, (1973)
4 SCC 225 : [1973] Suppl. SCR 1; K.S. Puttaswamy
and another v. Union of India and others, 2017 (10)
SCC 1 : [2017] 10 SCR 569; Supreme Court Advocates-
on-Record Association and others v. Union of India,
1993 (4) SCC 441 : [1993] 2 Suppl. SCR 659; Ashoka
F
Kumar Thakur v. Union of India and others, 2008 (6)
SCC 1 : [2008] 4 SCR 1; All India Reporter Karamchari
Sangh and others v. All India Reporter Limited and
others, 1988 Supp SCC 472 : [1988] SCR 774; Nand
Kishore v. State of Punjab, 1995 (6) SCC 614 : [1995]
G 4 Suppl. SCR 16; The State of Madras v. Champakam
Dorairajan, AIR 1951 SC 226 : [1951] SCR 525; B.
Venkataramana v. State of Tamil Nadu and Another, AIR
1951 SC 229; Minerva Mills limited and others v. Union
of India and others, (1980) 3 SCC 625 : [1981]
1 SCR 206; St. Stephen’s College case, (1992) 1 SCC
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DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 731
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558 : [1991] 3 Suppl. SCR 121; Society for Un-aided A
Private Schools of Rajasthan v. Union of India and
another, (2012) 6 SCC 1: [2012] 2 SCR 715; K. Krishna
Murthy and others v. Union of India and another, (2010)
7 SCC 202 : [2010] 6 SCR 972; Jarnail Singh and others
v. Lachhmi Narain Gupta and others, 2018 (10) SCC
B
396 : [2018] 10 SCR 663; State of Gujarat v. Mirzapur,
Moti Kureshi Kassab Jamat and others, (2005) 8 SCC
534 : [2005] 4 Suppl. SCR 582; Union of India and others
v. Rakesh Kumar and others, (2010) 4 SCC 50 : [2010]
1 SCR 483; M.R. Balaji v. The State of Mysore and
others, AIR (1963) SC 649 : [1963] Suppl. SCR 439; C
The State of Andhra Pradesh and others v. U.S.V.
Balram, etc., (1972) 1 SCC 660 : [1972] 3 SCR 247;
Barium Chemicals v. Company Law Board, AIR 1967 SC
295 : [1966] Suppl. SCR 311; B.K. Pavitra and others
v. Union of India and others, (2019) 16 SCC 129 : [2019]
D
7 SCR 1086; Mukesh Kumar and another v. State of
Uttarakhand and others, (2020) 3 SCC 1; ITC Ltd. v.
Agricultural Produce Market Committee and others, (2002)
9 SCC 232 : [2002] 1 SCR 441; State of Travancore,
Cochin and others v. Bombay Company Ltd., AIR 1952
SC 366 : [1952] SCR 1112 ; Aswini Kumar Ghose and E
another v. Arabinda Bose and another, AIR 1952 SC 369
: [1953] SCR 1; His Holiness Kesvananda Bharati v.
State of Kerala and another, (1973) 4 SCC 225 : [1973]
Suppl. SCR 1; R.S. Nayak v. A.R. Antulay, 1984 (2)
SCC 183 : [1984] 2 SCR 495; Minerva Mills Ltd. and
F
others v. Union of India and others, (1980) 3 SCC 625
: [1981] 1 SCR 206; Chandramouleshwar Prasad v.
The Patna High Court and others, (1969) 3 SCC 56 :
[1970] 2 SCR 666; Union of India v. Shankalchand
Himatlal Sheth and another, (1977) 4 SCC 193 : [1978]
1 SCR 423; Indian Administrative Services (S.C.S.) G
Association, U.P. and Others, (1993) Suppl. 1 SCC 730:
[1992] 2 Suppl. SCR 389; Supreme Court Advocates
on Record Association and others v. Union of India,
(1993) 4 SCC 441 : [1993] 2 Suppl. SCR 659; State
(NCT) of Delhi v. Union of India and another, 2018 (8)
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732 SUPREME COURT REPORTS [2021] 15 S.C.R.

A SCC 501 : [2018] 7 SCR 1 and Abhiram Singh v. C.C.
Commachen (Dead) By Legal Representatives and
others, (2017) 2 SCC 629 : [2017] 1 SCR 158 –
referred to.
The Central Province and Berar Sales of Motor Spirit
B and Lubricants Taxations Act, 1938, AIR 1939 Federal
Court 1 – referred to.
Granville Austin in “The Indian Constitution: Cornerstone
of a Nation” and Justice G.P. Singh in 296 ‘Principles
of Statutory Interpretation’, 14th Edition – referred to.
C per S. Ravindra Bhat, J. [Concurring with Ashok Bhushan,
J. on question Nos.1,2,3 and also supplementing in relation to
question No.1]
1.1. Re Point No. 1: Indra Sawhney does not require to be
referred to a larger bench nor does it require reconsideration in
D the light of subsequent constitutional amendments, judgments
and changed social dynamics of the society, for the reasons set
out by Ashok Bhushan, J. and my reasons, in addition. [Para
188][1064-F-G]
1.2. A careful reading of the judgments in Indra Sawhney,
E clarifies that seven out of nine judges concurred that there exists
a quantitative limit on reservation – spelt out @ 50%. In the
opinion of four judges, therefore, per the judgment of B.P. Jeevan
Reddy, J., this limit could be exceeded under extraordinary
circumstances and in conditions for which separate justification
F has to be forthcoming by the State or the concerned agency.
However, there is unanimity in the conclusion by all seven judges
that an outer limit for reservation should be 50%. Undoubtedly,
the other two judges, Ratnavel Pandian and P.B. Sawant, JJ.
indicated that there is no general rule of 50% limit on reservation.
In these circumstances, given the general common agreement
G about the existence of an outer limit, i.e. 50%, the petitioner’s
argument about the incoherence or uncertainty about the
existence of the rule or that there were contrary observations
with respect to absence of any ceiling limit in other judgments
(the dissenting judgments of K. Subbarao, in T. Devadasan v
Union of India, the judgments of S.M. Fazal Ali and Krishna Iyer,
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DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 733
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JJ. in State of Kerala v N.M. Thomas and the judgment of A
Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State of Karnataka)
is not an argument compelling a review or reconsideration of
Indra Sawhney rule. [Para 10][951-F-H; 952-A-B]
1.3. The idea of a definitive and objective principle, in the
form of a 50% ceiling on limitation, emerges on an overall reading B
of Indra Sawhney. The argument made by the respondents was
that this court should not go by such a ceiling limit, but rather,
while exercising its judicial review power, proceed on a case-by-
case approach, and resting its conclusions on fact dependent
exercises, using other criteria, such as reasonableness,
proportionality, etc. for judging excessive reservations. However, C
what constitutes reasonableness and what is proportionate in a
given case, would be unchartered and indeterminate areas. It is
one thing to try persuading the court to discard a known principle,
in the light of its loss of relevance, yet for that argument to prevail,
not only should the harm caused by the existing principle be D
proved, but also a principle that is sought to be substituted, should
have clarity, or else, the argument would be one asking the court
to take a leap in the dark. It is not enough, therefore to resort to
observations such as “the length of the leap to be provided
depends upon the gap to be covered” or the proportionality
doctrine (deployed to judge validity of an executive or legislative E
measure), because they reveal no discernible principle.
Reasonableness is no doubt a familiar phrase in the constitutional
lexicon; yet there is considerable subjectivity and relativity in its
practise. [Para 31][962-G; 963-A-C]
1.4. The ceiling of 50% with the “extraordinary F
circumstances” exception, is the just balance- what is termed as
the “Goldilocks solution” - i.e. the solution containing the right
balance that allows the state sufficient latitude to ensure
meaningful affirmative action, to those who deserve it, and at the
same time ensures that the essential content of equality, and its G
injunction not to discriminate on the various proscribed grounds
(caste, religion, sex, place of residence) is retained. This court
in M. Nagaraj v. Union of India observed that “a numerical
benchmark is the surest immunity against charges of

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734 SUPREME COURT REPORTS [2021] 15 S.C.R.

A discrimination.” To dilute the 50% benchmark further, would be
to effectively destroy the guarantee of equality, especially the
right not to be discriminated against on the grounds of caste
(under Articles 15 and 16). [Para 34][964-D-F]
2. Re Point No 2: The Maharashtra State Reservation (of
B seats for admission in educational institutions in the State and for
appointments in the public services and posts under the State)
for Socially and Educationally Backward Classes (SEBC) Act,
2018 as amended in 2019 granting 12% and 13% reservation for
Maratha community in addition to 50% social reservation is not
covered by exceptional circumstances as contemplated by
C Constitution Bench in Indra Sawhney’s case. [Para 188][1064-G-
H; 1065-A-B]
3. Re Point No. 3: The State Government, on the strength
of Maharashtra State Backward Commission Report chaired by
M.C. Gaikwad has not made out a case of existence of
D extraordinary situation and exceptional circumstances in the State
to fall within the exception carved out in Indra Sawhney. [Para
188][1065-B-C]
4. Re Point No 4: Whether the Constitution One Hundred
and Second Amendment deprives the State Legislature of its
E power to enact a legislation determining the socially and
economically backward classes and conferring the benefits on
the said community under its enabling power?; and Re. Point
No. 5 Whether, States’ power to legislate in relation to “any
backward class” under Articles 15(4) and 16(4) is anyway abridged
F by Article 342(A) read with Article 366(26c) of the Constitution
of India.
On these two interrelated points of reference, conclusions
are as follows:
(i) By introduction of Articles 366 (26C) and 342A through
G the 102nd Constitution of India, the President alone, to the
exclusion of all other authorities, is empowered to identify SEBCs
and include them in a list to be published under Article 342A (1),
which shall be deemed to include SEBCs in relation to each state
and union territory for the purposes of the Constitution. [Para
188]
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DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 735
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(ii) The states can, through their existing mechanisms, or A
even statutory commissions, only make suggestions to the
President or the Commission under Article 338B, for inclusion,
exclusion or modification of castes or communities, in the list to
be published under Article 342A(1). [Para 188][1065-D-H]
(iii) The reference to the Central List in Article 342A(2) is B
the one notified by the President under Article 342A(1). It is to
be the only list for all purposes of the Constitution, in relation to
each state and in relation to every union territory. The use of the
term “the Central List” is only to refer to the list prepared and
published under Article 342A (1), and no other; it does not imply
that the states have any manner of power to publish their list of C
SEBCs. Once published, under Article 342A (1), the list can only
be amended through a law enacted by Parliament, by virtue of
Article 342A (2). [Para 188][1066-A-C]
(iv) In the task of identification of SEBCs, the President
shall be guided by the Commission set up under Article 338B; D
its advice shall also be sought by the state in regard to policies
that might be framed by it. If the commission prepares a report
concerning matters of identification, such a report has to be shared
with the state government, which is bound to deal with it, in
accordance with provisions of Article 338B. However, the final E
determination culminates in the exercise undertaken by the
President (i.e. the Central Government, under Article 342A (1),
by reason of Article 367 read with Section 3 (8) (b) General
Clauses Act). [Para 188][1066-C-E]
(v) The states’ power to make reservations, in favour of F
particular communities or castes, the quantum of reservations,
the nature of benefits and the kind of reservations, and all other
matters falling within the ambit of Articles 15 and 16 – except
with respect to identification of SEBCs, remains undisturbed.
[Para 188][1066-E-F]
G
(vi) The Commission set up under Article 338B shall
conclude its task expeditiously, and make its recommendations
after considering which, the President shall expeditiously publish
the notification containing the list of SEBCs in relation to states

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736 SUPREME COURT REPORTS [2021] 15 S.C.R.

A and union territories, for the purpose of the Constitution. [Para
188][1066-F-G]
(vii) Till the publication of the notification mentioned in
direction (vi), the existing lists operating in all states and union
territories, and for the purposes of the Central Government and
B central institutions, continue to operate. This direction is issued
under Article 142 of the Constitution of India. [Para 188][1066-
G-H]
5. Re Point No. 6: The alteration of the content of state
legislative power in an oblique and peripheral manner would not
constitute a violation of the concept of federalism. It is only if the
C
amendment takes away the very essence of federalism or
effectively divests the federal content of the constitution, and
denudes the states of their effective power to legislate or frame
executive policies (co-extensive with legislative power) that the
amendment would take away an essential feature or violate the
D basic structure of the Constitution. Applying such a benchmark,
this court is of the opinion that the power of identification of SEBCs
hitherto exercised by the states and now shifted to the domain of
the President (and for its modification, to Parliament) by virtue
of Article 342A does not in any manner violate the essential
features or basic structure of the Constitution. The 102nd
E Amendment is also not contrary to or violative of proviso to
Article 368 (2) of the Constitution of India. Article 342A of the
Constitution by denuding States power to legislate or classify in
respect of “any backward class of citizens” does not affect or
damage the federal polity and does not violate the basic structure
of the Constitution of India. [Paras 187, 188][1064-C-E; 1067-A-
F
B]
6. The appeals and writ petitions are therefore, disposed
of in terms of the operative order of Bhushan, J. in para 444 of
his Judgment. [Para 189][1067-B-C]

G Indra Sawhney v Union of India (1992) 3 Supp SCC
217 : [1992] 2 Suppl. SCR 454; T. Devadasan v Union
of India [1964] 4 SCR 680; State of Kerala v N.M.
Thomas 1976 (2) SCC 310 : [1992] 2 Suppl. SCR 454;
K.C. Vasanth Kumar v. State of Karnataka [1985] 1
Suppl. SCR 352; M.R. Balaji v. State of Mysore 1963
H Suppl. 1 SCR 439; P. Rajendran v. State of T.N. [1968]
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 737
& ANR

2 SCR 786; A Peeriakaruppan v. State of T.N. (1971) 1 A
SCC 38: [1971] 2 SCR 430; State of A.P. v. USV Balram
(1972) 1 SCC 660: [1972] 3 SCR 247; State of U.P.
v. Pradeep Tandon (1975) 1 SCC 267 : [1975] 2 SCR
761; Janki Prasad Parimoo v. State of J&K (1973) 1
SCC 420 : [1973] 3 SCR 236; Krishena Kumar and
B
Anr. v. Union of India & Ors. (1990) 4 SCC 207 : [1990]
3 SCR 352; Union of India v Raghubir Singh [1989] 3
SCR 316; Barium Chemicals v. Company Law Board
[1966] Suppl. 3 S.C.R. 311; Mukesh Kumar v. State of
Uttarakhand (2020) 3 SCC 1; In re Kerala Education
Bill [1959] SCR 995; T.M.A Pai Foundation v. State of C
Karnataka 2002 (8) SCC 481 : [2002] 3 Suppl.
SCR 587; R.C. Poudyal v. Union of India 1994 Supp
(1) SCC 324 : [1993] 1 SCR 891; State of Punjab v.
Hiralal [1971] 3 SCR 267; M. Nagaraj v. Union of
India (2006) 8 SCC 212 : [2006] 7 Suppl. SCR 336;
D
Pramati Educational & Cultural Trust v. Union of India
2014 (8) SCC 1 : [2014] 11 SCR 712; B.K. Pavitra v.
Union of India (2019) 16 SCC 129: [2019]
7 SCR 1086; State of Travancore-Cochin v. Bombay
Company Ltd, [1952] SCR 1112; Aswini Kumar Ghose
& Anr. v. Arabinda Ghose & Anr. AIR 1953 SC 75: E
[1953] SCR 215 P.V. Narasimha Rao v. State (1998) 4
SCC 626 : [1998] 2 SCR 870; Sanjeev Coke
Manufacturing v. Bharat Coking Coal Ltd. & Anr.
[1983] 1 SCR 1000; Kalpana Mehta and Ors. v. Union
of India and Ors. (2018) 7 SCC 1 : [2018] 4 SCR 1;
F
Soosai Etc v. Union of India [1985] Suppl 3 SCR 242;
Bhaiya Lal v. Harikishan Singh [1965] 2 SCR 877;
Basavalingappa v Munichinnappa [1965] 1 SCR 316;
Kishori Lal Hans v. Raja Ram Singh 1972 (3) SCC 1 :
[1972] 2 SCR 632; Bir Singh v. Delhi Jal Board (2018)
10 SCC 312 : [2018] 10 SCR 513; Champakam G
Dorairajan v. State of Madras AIR 1951 SC 226 :
[1951] SCR 525; State of Karnataka v. Union of India
[1978] 2 SCR 1; GVK Industries Ltd. v. Income Tax
Officer (2011) 4 SCC 36 : [2011] 3 SCR 366; Kuldip
Nayar v. Union of India (2006) 7 SCC 1 : [2006]
H
738 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 5 Suppl. SCR 1; G. Narayanaswami v. G.
Panneerselvam (1972) 3 SCC 717 : [1973] 1 SCR 172;
Pushpa Devi v. Milkhi Ram (1990) 2 SCC 134: [1990]
1 SCR 278; Karnataka State Financial Corporation.
v. N. Narasimahaiah (2008) 5 SCC 176 : [2008] 4
SCR 853; Laurel Energetics (P) Ltd. v. Securities
B
Exchange Board of India (2017) 8 SCC 541 : [2017]
5 SCR 1005; Kihoto Hollohan v. Zachillhu (1992) 2
Suppl. SCC 651 : [1992] 1 SCR 686; Marri Chandra
Shekhar Rao v. Dean, Seth G.S. Medical College (1990)
3 SCC 130 : [1990] 2 SCR 843; State of Maharashtra
C & Anr v. Union of India & Anr. (1994) 5 SCC 244 :
[1994] 1 Suppl. SCR 714; 20th Century Finance
Corpn. Ltd. v. State of Maharashtra (2000) 6 SCC 12:
[2000] 1 Suppl. SCR 120; Builders’ Association of
India v. Union of India (1989) 2 SCC 645 : [1989]
2 SCR 320; Commissioner of Income Tax v. Willamson
D
Financial Services (2008) 2 SCC 202 : [2007]
13 SCR 376; Tata Consultancy Services v. State of A.P.
(2005) 1 SCC 308 : [2004] 5 Suppl. SCR 1040;
Bimolangshu Roy v. State of Assam (2018) 14 SCC 408
: [2017] 13 SCR 301; Ashoka Kumar Thakur v. Union
E of India (2008) 6 SCC 1 : [2008] 4 SCR 1; New Delhi
Municipal Council v. State of Punjab (1997) 7 SCC
339 : [1996] 10 Suppl. SCR 472; Shivraj Singh
Chauhan v. Speaker, Madhya Pradesh Legislative
Assembly 2020 SCC Online SC 363 141; DTC Mazdoor
Congress v. Delhi Transport Corporation [1990] 1
F
Suppl. SCR 142; Balram Kumawat v. Union of India
(2003) 7 SCC 628 : [2003] 3 Suppl. SCR 24; Abhiram
Singh v. C.D. Commachen (2017) 2 SCC 629 : [2017]
1 SCR 158; Punjab Land Development and
Reclamation Corpn. Ltd. v. Presiding Officer, Labour
G Court, (1990) 3 SCC 682 : [1990] 3 SCR 111; P.
Kasilingam v PSG College of Technology 1995 Supp
(2) SCC 348 : [1995] 2 SCR 1061; Black Diamond
Beverages v Commercial Tax Officer 1998 (1) SCC 458
: [1997] 4 Suppl. SCR 133; Godrej and Boyce
Manufacturing Co v State of Maharashtra 2014 (3) SCC
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 739
& ANR

430 : [2014] 2 SCR 203; K. Lakshminarayanan v. A
Union of India (2020) 14 SCC 664 : [2018]
14 SCR 689; Raghunathrao Ganpatrao v. Union of
India 1994 Suppl. (1) SCC 191 : [1993] 1 SCR 480;
Jindal Stainless Ltd. v. State of Haryana, 2016 SCC
OnLine SC 1260; State of Rajasthan v. Union of India
B
1978 1 SCR 1; Kesavananda Bharti v. State of Kerala
[1973] Suppl. SCR 1; Sajjan Singh v. State of Rajasthan
[1965] 1 SCR 933; and Maharao Sahib Shri Bhim
Singhji v. Union of India (1981) 1 SCC 166 : [1985]
1 Suppl. SCR 862 – referred to.
Harksen v. Lane 1997 (11) BCLR 1489 (CC); BBC C
Enterprises v. Hi-Tech Xtravision Ltd., 1990) 2 All ER
118; City Council of Pretoria v. Walker 1998 (3) BCLR
257 (CC); Fullilove v. Klutznick, 448 U.S. 448 (1980);
Adarand Constructors, Inc. v. Penal 515 U.S. 200
(1995); Canadian National Railway Co v. Canada D
(Canadian Human Rights Commission) [1987] 1 SCR
1114; Ontario (Human Rights Commission) v Ontario
(Ministry of Health) (1994) 21 CHRR (Ont CA) D/
259 and R. (Baiai) v. Home Secretary, [2006] EWHC
823 (Admin). – referred to.
Rabindranath Tagore’s Gitanjali, Verse 35; Aharon E
Barak, The Judge in a Democracy, p.132; Michael
Kirby, Indian and Australian Constitutional Law: A
Recent Study in Contrasts’, 60 JILI (2018) 1, p. 30 and
Herbert Weschler, ‘Towards Neutral Principles of
Constitutional Law’, (1959) 73 Harv. L. Rev. 1 – F
referred to.
per L. Nageswara Rao, J. [Concurring with Ashok Bhushan,
J. on question Nos.1, 2 and 3, and concurring with S. Ravindra
Bhat, J. on question Nos.4, 5 and 6]
1. It is difficult to agree with the submissions made on behalf G
of the Respondents that the use of words ‘central list’ would
restrict the scope and amplitude of the notification to be issued
under Article 342A(1). There is only one list that can be issued
by the President specifying the socially and educationally
backward classes and only those classes are treated as socially
H
740 SUPREME COURT REPORTS [2021] 15 S.C.R.

A and educationally backward classes for the purposes of the
Constitution. Taking cue from the National Commission for
Backward Classes Act, 1993, the Respondents argued that the
words ‘Central list’ is with reference only to appointments to
Central services and admission in Central educational institutions.
B Reading ‘Central list’ in that manner would be curtailing the width
of Article 342A(1). If so read, the sweep of Sub-Clause (1) shall
be minimized. Moreover, to achieve the said meaning, words which
are not in Article 342A(1) have to be read into it. Contextually,
the words Central list in Article 342A(2) can be only with reference
to the list contained in the notification which may be issued under
C Article 342A(1). It is well settled law that the provisions of the
Constitution have to be harmoniously construed and it is apparent
from Article 342A(1) and (2) that there is no scope for any list of
socially and educationally backward classes, other than the list
to be notified by the President. As the other expressions ‘for the
D purposes of the Constitution’ and ‘unless the context otherwise
requires’ have been dealt with by Justice Bhat, there is nothing
more to add to the construction placed by him on the said
expressions. [Para 25][1077-F-G; 1078-A-C]
2. Only those backward classes included in the public
E notification under Article 342A shall be socially and educationally
backward classes for the purposes of the Constitution. [Para
26][1078-E]
Kuldip Nayar v. Union of India (2006) 7 SCC 1 : [2006]
5 Suppl. SCR 1; G. Narayanaswami v. G. Pannerselvam
(1972) 3 SCC 717 : [1973] 1 SCR 172; South Asia
F
Industries Private Ltd v. S. Sarup Singh and others
[1965] 3 SCR 829; Institute of Chartered Accountants
of India v. Price Waterhouse (1997) 6 SCC 312 : [1997]
2 Suppl. SCR 267; J.P. Bansal v. State of Rajasthan
(2003) 5 SCC 134 : [2003] 2 SCR 933; Kanai Lal Sur
G v. Paramnidhi Sadhukhan, [1958] 1SCR 360; State
(NCT of Delhi) v. Union of India (2018) 8 SCC 501 :
[2018] 7 SCR 1; R.S. Nayak v. A.R. Antulay (1984) 2
SCC 183 : [1984] 2 SCR 495; Grasim Industries Ltd.
v. Collector of Customs, Bombay (2002) 4 SCC 297 :
H [2002] 2 SCR 945; Workmen of Dimakuchi Tea Estate
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 741
& ANR

v Managenment of Dimakuchi Tea Estate, [1958] SCR A
1156; M/s New India Sugar Mills Ltd v. Commissioner
of Sales Tax, Bihar [1963] 2 SCR Suppl. 459; C. I. T v.
N. C. Budharaja and Co.(1994)1 SCC Suppl. 280:
[1993] 2 Suppl. SCR 185; Kalpana Mehta and Ors. v.
Union of India and Ors. (2018) 7 SCC 1 : [2018]
4 SCR 1; Punjab Land Development and Reclamation B
Corporation Ltd. v. Presiding Officer, Labour Court
(1990) 3 SCC 682 : [1990] 3 SCR 111; P. Kasilingam
v. P.S.G. College of Technology, (1995) 2 Suppl. SCC
348; Indra Sarma v. V. K. V. Sarma (2013) 15 SCC 755
: [2013] 14 SCR 1019; Sudha Rani Garg v. Jagdish C
Kumar (2004) 8 SCC 329; Nyadar Singh v. Union of
India (1988) 4 SCC 170 : [1988] 2 Suppl. SCR 546
and Union of India v. Sankalchand Himmat Lal Seth
[1977) 4 SCC 193 : [ 1978] 1 SCR 423 – referred to.
McCulloch v. Maryland, 17 U.S. 316 (1819); Adams
Express Company v. Commonwealth of Kentucky 238 D
US 190 (1915); United States v. Goldenberg 168 US 95
(1897); Jones v D.P.P. [1962] AC. 635; R. v. Oakes
[1959] 2 Q.B. 350; Aron Soloman v. Soloman & Co.
1897 AC 22; Pepper (Inspector of Taxes) v Hart 1993
AC 593; R v. DPP ex-parte Duckenfield [1999] 2 All E
ER 873; Black-Clawson International Ltd. 1975 AC
591; Assam Railways and Trading Co Ltd v. Inland
Revenue, 1935 AC 445; Letang v. Cooper [1965] 1 QB
232; Gough v. Gough, (1891) 2 QB 665; Collins
v. Texas, 223 U.S. 288; East End Dwellings Co. Ltd v.
Finsbury Borough Council [1952] AC 109 and Towne F
v. Eisner 245 U.S. 425 (1918) – referred to.
Purposive Interpretation in Law by Aharon Barak;
Benjamin Cardozo, the Nature of Judicial Process,
(New Haven: Yale University Press, 13th Edn., 1946),
141; Craies on Legislation, 9th Edition and Bennion G
on Statutory Interpretation, 5th Edition – referred to.
Case Law Reference
In the judgment of Ashok Bhushan, J.
[1992] 2 Suppl. SCR 454 referred to Para 14
(2006) 8 SCC 212 explained Para 21 H
742 SUPREME COURT REPORTS [2021] 15 S.C.R.

A [2018] 10 SCR 663 referred to Para 45
[1963] Suppl. SCR 439 explained Para 55
[1966] Suppl. SCR 311 referred to Para 63
[1964] SCR 680 referred to Para 84
[1971] 3 SCR 267 referred to Para 84
B
[1976] 1 SCR 906 referred to Para 84
[1981] 2 SCR 185 referred to Para 84
(1985) Supp. (1) SCC 714 referred to Para 84
[2002] 3 Suppl. SCR 587 distinguished Para 84
C (2012) 7 SCC 41 distinguished Para 84
[2010] 1 SCR 483 referred to Para 84
[1991] 3 Suppl. SCR 121 referred to Para 85(vii)
[2018] 4 SCR 1 referred to Para 101
[1955] SCR 290 referred to Para 122
D [1951] SCR 747 referred to Para 122
[1962] SCR 586 referred to Para 136
[1976] 1SCR 906 referred to Para 138
[1964] SCR 680 referred to Para 141
[1981] 2 SCR 185 referred to Para 143
E
[1985] Suppl. SCR 352 referred to Para 144
[1971] 3 SCR 267 referred to Para 146
(2012) 7 SCC 41 referred to Para 148
2020 (7) SCALE 162 referred to Para 152
F [1976] SCR 347 referred to Para 154
[1973] Suppl. SCR 1 referred to Para 166
[2017] 10 SCR 569 referred to Para 167
[1993] 2 Suppl. SCR 659 referred to Para 168
[2008] 4 SCR 1 referred to Para 171
G
[1988] SCR 774 referred to Para 178
[1995] 4 Suppl. SCR 16 referred to Para 179
[1951] SCR 525 referred to Para 186
AIR 1951 SC 229 referred to Para 186
H [1981] 1 SCR 206 referred to Para 192
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 743
& ANR

[1991] 3 Suppl. SCR 121 referred to Para 199 A
[2012] 2 SCR 715 referred to Para 201
[2010] 6 SCR 972 referred to Para 211
[1965] SCR 908 held applicable Para 216
[2018] 10 SCR 663 referred to Para 217
B
[2005] 4 Suppl. SCR 582 referred to Para 218
[2010] 1 SCR 483 referred to Para 239
[1972] 3 SCR 247 referred to Para 265
[1966] Suppl. SCR 311 referred to Para 269
[2019] 7 SCR 1086 referred to Para 273 C
(2020) 3 SCC 1 referred to Para 274
[2015] 5 SCR 670 affirmed Para 311
[2002] 1 SCR 441 referred to Para 345
[1952] SCR 1112 referred to Para 350
[1953] SCR 1 referred to Para 351 D
[1973] Suppl. SCR 1 referred to Para 352
[1984] 2 SCR 495 referred to Para 356
[1981] 1 SCR 206 referred to Para 359
[1970] 2 SCR 666 referred to Para 392
E
[1978] 1 SCR 423 referred to Para 393
[1992] 2 Suppl. SCR 389 referred to Para 394
[1993] 2 Suppl. SCR 659 referred to Para 395
[2018] 7 SCR 1 referred to Para 402
[2017] 1 SCR 158 referred to Para 407 F
In the judgment of S. Ravindra Bhat, J.
[1992] 2 Suppl. SCR 454 referred to Para 7
[1964] 4 SCR 680 referred to Para 10
[1985]1 Suppl. SCR 352 referred to Para 10
G
[1963] Supp. 1 SCR 439 referred to Para 13
[1968] 2 SCR 786 referred to Para 13
[1971] 2 SCR 430 referred to Para 13
[1972] 3 SCR 247 referred to Para 13
[1975] 2 SCR 761 referred to Para 13 H
744 SUPREME COURT REPORTS [2021] 15 S.C.R.

A [1973] 3 SCR 236 referred to Para 13
[1990] 3 SCR 352 referred to Para 15
[1989] 3 SCR 316 referred to Para 21
[1966] Suppl. 3 SCR 311 referred to Para 22
(2020) 3 SCC 1 referred to Para 23
B [1959] SCR 995 referred to Para 29
[2002] 3 Suppl. SCR 587 referred to Para 29
[1993] 1 SCR 891 referred to Para 30
[1971] 3 SCR 267 referred to Para 31
[2006] 7 Suppl. SCR 336 referred to Para 34
C
[2014] 11 SCR 712 referred to Para 38
[2019] 7 SCR 1086 referred to Para 41
[1987] 1 SCR 1114 referred to Para 63
[1952] SCR 1112 referred to Para 79
D [1953] SCR 215 referred to Para 79
[1998] 2 SCR 870 referred to Para 79
[1983] 1 SCR 1000 referred to Para 79
[2018] 4 SCR 1 referred to Para 81
[1985] Suppl 3 SCR 242 referred to Para 87
E [1965] 2 SCR 877 referred to Para 91
[1965] 1 SCR 316 referred to Para 91
[1972] 2 SCR 632 referred to Para 91
[2018] 10 SCR 513 referred to Para 91
[1951] SCR 525 referred to Para 93
F
[1978] 2 SCR 1 referred to Para 108
[2011] 3 SCR 366 referred to Para 109
[2006] 5 Suppl. SCR 1 referred to Para 109
[1973] 1 SCR 172 referred to Para 109
G [1990] 1 SCR 278 referred to Para 110
[2008]4 SCR 853 referred to Para 111
[2017] 5 SCR 1005 referred to Para 112
[1992] 1 SCR 686 referred to Para 114
[1990] 2 SCR 843 referred to Para 116
H [1994] 1 Suppl. SCR 714 referred to Para 117
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 745
& ANR

[2000] 1 Suppl. SCR 120 referred to Para 121 A
[1989] 2 SCR 320 referred to Para 122
[2007] 13 SCR 376 referred to Para 123
[2004] 5 Suppl. SCR 1040 referred to Para 125
[2017] 13 SCR 301 referred to Para 129
[2008] 4 SCR 1 referred to Para 130 B
[1996] 10 Suppl. SCR 472 referred to Para 131
[1990] 1 Suppl. SCR 142 referred to Para 142
[2003] 3 Suppl. SCR 24 referred to Para 145
[2017] 1 SCR 158 referred to Para 146
C
[1990] 3 SCR 111 referred to Para 150
[1995] 2 SCR 1061 referred to Para 150
[1997] 4 Suppl. SCR 133 referred to Para 150
[2014] 2 SCR 203 referred to Para 150
[2018] 14 SCR 689 referred to Para 153 D
[1993] 1 SCR 480 referred to Para 168
[1978] 1 SCR 1 referred to Para 175
[1973] Suppl. SCR 1 referred to Para 179
[1965] 1 SCR 933 referred to Para 180
[1985] 1 Suppl. SCR 862 referred to Para 186 E
In the judgment of L. Nageswara Rao, J.
[2006] 5 Suppl. SCR 1 referred to Para 6
[1973] 1 SCR 172 referred to Para 6
[1965] 3 SCR 829 referred to Para 6
F
[1997] 2 Suppl. SCR 267 referred to Para 6
[2003] 2 SCR 933 referred to Para 6
[1958] 1SCR 360 referred to Para 6
[2018] 7 SCR 1 referred to Para 9
[1984] 2 SCR 495 referred to Para 10
G
[2002] 2 SCR 945 referred to Para 10
[1958] SCR 1156 referred to Para 11
[1963] 2 SCR Suppl. 459 referred to Para 12
[1993] 2 Suppl. SCR 185 referred to Para 12
[2018] 4 SCR 1 referred to Para 15 H
746 SUPREME COURT REPORTS [2021] 15 S.C.R.

A [1990] 3 SCR 111 referred to Para 19
(1995) 2 Suppl. SCC 348 referred to Para 19
[2013] 14 SCR 1019 referred to Para 19
(2004) 8 SCC 329 referred to Para 21
[1988] 2 Suppl. SCR 546 referred to Para 23
B [1978] 1 SCR 423 referred to Para 23
CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil Appeal
No. 3123 of 2020.
From the Judgment and Order dated 27.06.2019 of the High Court
of Judicature at Bombay in PIL No. 175 of 2018.
C With
Civil Appeal Nos. 3124, 3133, 3134, 3131, 3129 Of 2020, Writ
Petition (C) Nos. 915, 504, 914 of 2020, Civil Appeal Nos. 3127, 3126,
3125, 3128, 3130 of 2020, Writ Petition (C) No. 938 of 2020.
K. K. Venugopal, S.C. Verma, Sathish Chanda Verma, Vivek Kolhi,
D Amit Kumar, AGs., Ravindra Lokhande, Nalin Kohli, Abhinav Mukerji,
Arunabh Choudhary, Krishnaraj Thakker, AAGs., Vinay Arora, DAG.,
Tushar Mehta, SG., N. Venketaraman, ASG., Sathish Chanda Verma,
Rajiv Ranjan, Prabhuling Navadgi, Advs. Gen., Baldev Raj Mahajan, Sr.
Adv.(AG)., K.N. MohamBalgopal, Sr. Adv.(A.G.)., Vijay Narayan, Sr.
Adv. (AG)., Arvind P. Datar, Pradeep Sancheti, Gopal Sankaranarayanan,
E Shyam Divan, Sidharth Bhatnagar, Dr. Rajiv Dhawan, B.H. Marlapalle,
Mukul Rohatgi, Shekhar Naphade, P.S. Patwalia, V.A. Thorat, Kapil
Sibal, C.U. Singh, A.M. Singhvi, Rafique A. Dada, Ms. Mahalakshmi
Pavani, Ranjit Kumar, Ms. Somya Chakraborti, Ms. Malvika Trivedi, S.
Niranjan Reddy, Jaideep Gupta, Dr. Manish Singhvi, Jayanth Muth Raj,
F Sr. Advs., Ms. Pooja Dhar, Surutanjaya Bhardwaj, Rahul Unnikrishnan,
Ms. Pallavi Bali, Prathamesh Kamat, Arjun A.P. Apoorva, Ms. Janvi
Dubey, Vishal Sinha, Amit Anand Tiwari, Vivek Singh, Rahul Arya, S.
Mahesh Sahasranaman, Pratap Shankar, Ms. Mary Mitzy, K.K. Singh,
Sagar Saxena, Ms. Devyani Gupta, Premlal Krishnan, Utsav Trivedi,
Anurag Mankar, Vinayak Bhandari, Ashish Choudhary, Aditya Sidhra,
G Nadeem Afroz, Ms. Bharti Tyagi, Rameshwar F. Totla, Ashutosh Dubey,
Ms. Rajshri Dudey, Arun Nagar, Rahul Totla, Abhishek Chauhan, Ms.
Ravleen Chhabra, V.S. Rawat, Samrudhi Bendbhar, Amit Kumar,
Siddhartha Chowdhury, Dr. Gunratan Sadavarte, Pankaj Kumar Singh,
Makrand Pratap Singh, Pawan Kumar Shukla, Kamal Kumar Pandey,
Raj Singh Rana, S.B. Talekar, Vipin Nair, P.B. Suresh, Karthik
H Jayashankar, Sughosh Subramanyam, Ms. Pradyna Talekar, Ms. Madhavi
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 747
& ANR

Ayyappan, Anshumaan Bahadur, R.K. Deshpande, Hrishikesh S. Chitaley, A
Ashwin Deshpande, Vijay Kari Singh, Samir Malik, Govind Jee, Krishna
Kumar Singh, Sanjay V. Kharde, Satyajeet S. Kharde, Kailas Bajirao
Autade, Ms. Sheetal Patil, Prashant Shantaram Chaudhari, Amol B.
Karande, Dilip B. Rode, Sandesh R. Patil, Mahesh B. Karande, Pritam
C. Rajput, Dilip Annasaheb Taur, Rajesh Tekale, Ashish Gaikwad,
Ramesh Dube Patil, Rishi Kumar Singh Gautam, Sanjay Kharde, Vishal B
Kadam, Satyajeet Kharde, Samrat Shinde, Ms. Shraddha Deshmukh,
Ms. Chinmayee Chandra, Rajat Nair, Kanu Agrawal, Navanjay
Mahapatra, Amrish Kumar, Sachin Patil, Rahul Chitnis, Akshay Shinde,
Vaibhav Sugdare, Ms. Misha Rohatgi Mohta, Ms. Harshika Verma, Ms.
S. Lakshmi Iyer, Aaditya A. Pande, Geo Joseph, Sudhanshu S. Choudhari, C
Mahesh P. Shinde, Anil Golegaonkar, Rajesh Tekale, Ashish Gaikwad,
Madhur Golegaonkar, Ms. Rucha Pande, Ms. Bhavana Khichi, Bhagwan
Gavali, Ms. Pooja Dhar, Surutanjaya Bhardwaj, Rahul Unnikrishnan,
Ms. Pallavi Bali, Prathamesh Kamat, Arjun A.P. Apoorva, Abdulrahiman
Tamboli, Rahul Joshi, Tapesh Kumar Singh, Aditya Pratap Singh, Ms.
Bhaswati Singh, Nishant Sharma, Ms. Adviteeya, Rakesh K. Sharma, D
Prashant Shrikant Kenjale, Sandeep Sudhakar Deshmukh, Nishant
Ramakantrao Katneshwarkar, Shriram P. Pingle, Ms. Rashmi D.
Dhongde, Abhijit Patil, Sandeep Dere, Ms. Pooja Thorat, Nilesh Lonkar,
Ms. Manisha Jain, Rajesh Inamdar, Ms. Namisha Jain, Shivaji M. Jadhav,
Brij Kishor Sah, Anish R. Shah, Ms. Qurratulain, Aditya S. Jadhav,
Nicholas Choudhury, Ms. Joyshree Barman, Rajat Joseph, Ravi Bharuka, E
Ajit Pravin Wagh, Ms. Astha Prasad, Ms. Prabhleen Kaur, Ms. Ishita
Farsaiya, Apoorv Shukla, Dhairyashil Salunkhe, Ms. Buva Mrunal
Dattatraya, Manu T. Ramachandran, Suhas Kumar Kadam, Ms. Manju
Jetley, Samrat Krishnarao Shinde, Amol Nirmalkumar Suryawanshi,
Mareesh Pravir Sahay, Pranav P. Patil, Krishna Kumar, Dr. Vipin Gupta,
F
V.K. Biju, Neeleshwar Pawani, Amlendu Kumar Akhilesh Kumar Jha,
Abhay Pratap Singh, Shaji George, Ms. Vijay Laxmi, Ms. Rubina Jawed,
Shreyas Gacche, Anerao Pandit, T.R.B. Sivakumar, Yadav Narender
Singh, Rajsaheb Patil, Ravi Prakash Jadhav, Ms. Akshata Jadav, Ms.
Swati Vaibhav, Prashant Shrikant Kenjale, Farrukh Rasheed, A. Karthik,
Ms. Smrithi Suresh, Arsh Khan, Ms. Sreepriya K., Ravindra Keshavrao G
Adsure, Jaiprakash Babasaheb Chavan, Sideshwar Namdev Biradar,
Yash Prashant Sonawane, Yogesh Ramesh Joshi, Ashok Arora, Rajeev
Kumar Bansal, Girish Patel, Abhishek Sharma, Dinesh P. Rajbhar, Ms.
Anzu K. Varkey, Akash Avinash Kakade, Somanatha Padhan, Swetab
Kumar, Ms. Sukhada Omprakash Kakade, Dr. Rajesh Pandey, Sumeer
H
748 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Sodhi, Ms. Prachi Misra, Chaitanya, Kartik Pant, Ms. Aswathi M.K.,
Ms. Jaikriti S. Jadeja, S. Hari Haran, Amit A. Pai, Ms. Pankhuri
Bharadwaj, Ms. Bhavana Duhoon, Ms. Ranu Purohit, Shakul R. Ghatole,
Dr. A.P. Singh, V.P. Singh, Ms. Geeta Chauhan, Ms. Richa Singh,
Sharwan Kumar Goyal, Jai Gopal Saboo, Sadashiv, Shankar Chillarge,
Kaleeswaram Raj, Mohammed Sadique T.A., Ms. Thulasi K. Raj, Ms.
B Maitreyi S. Hegde, Ms. Uttara P.V., Ms. Sheryl Sebastian, Ms. Sneha
Ravi Iyer, Amol B. Karande, Vikrant Yadav, Mahesh B. Karande,
Sandesh R. Patil, Ankit Yadav, Mahfooz A. Nazki, Polanki Gowtham,
Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy, Amitabh Sinha, Shrey
Sharma, Abhimanyu Tewari, Ms. Eliza Bar, Ms. Diksha Rai, Shuvodeep
C Roy, Ms. Palak Mahajan, Shuvodeep Roy,
Rahul Raj Mishra, Manish Kumar, Harpreet Singh, Sahil Raveen, Sahil
Chandra, S.C. Verma, Ms. Prachi Mishra, Sumeer Sodhi, Hussain Ali,
Chaitanya, Kartik Pant, Chirag M. Shroff, Ms. Abhilasha Bharti, Sushant
Dogra, Kanu Agarwal, Aniruddha P. Mayee, Mrs. Bihu Sharma, Ms.
Pratishtha Vij, Arun Bhardwaj, Dilbag Singh, Dr. Monika Gusain, Vishwa
D Pal Singh, Ms. Pragya Baghel, Vishnu Sharma, Kumar Anurag Singh,
Parthiv Goswami, Abhishek Roy, Ms. Aastha Shreshtha, Ms. Tulika
Mukherjee, Ms. Taruna Ardhendumauli Prasad, Aman Bhatnagar, Parth
Awasthi, Jishnu M.L., Ms. Priyanka Prakash, Ms. Beena Prakash, Ms.
Anandita Mitra, Supratik Sarkar, G. Prakash, Shubhranshu Padhi, Ashish
Yadav, Rakshit Jain, Vishal Banshal, Pukhrambam Ramesh Kumar, Ms.
E Anupama Ngangom, Karun Sharma, Siddhesh Kotwal, Ms. Bansuri
Swaraj, Divyansh Tiwari, Ms. Ana Upadhyay, Ms. Manya Hasija,
Nirnimesh Dube, Mrs. K. Enatoli Sema, Amit Kumar Singh, Nitya
Nambair, Vitso Rio, Karan Bharihoke, Ms. Neha Sahai Bharihoke,
Siddhant Sharma, D.K. Devesh, Sameer Abhyankar, Nalin Talwar, Amish
Tandon, Ayush Beotra, Varun Tandon, Dipin Tamang, Uddhav Khanna,
F
Ms. Shafali Jain, M. Yogesh Kanna, Raja Rajeshwaran S., Ms. Lakshmi
Iyer, Aditya Chadha, Ms. Uma Prasuna Bachu, P. Venkat Reddy, Prashant
Tyagi, P. Srinivas Reddy, M/s Venkat Palwai Law Associates, Shuvodeep
Roy, Rahul Raj Mishra, Apoorv Singhal, Aashish Prasad, Suhaan Mukerji,
Vishal Prasad, Nikhil Parikshith, Abhishek Manchanda, Sayandeep Pahari
G for M/s PLR Chambers & Co., Avijit Mani Tripathi, Shaurya Sahay,
Aditya Shankar Pandey, Pradeep Misra, Suraj Singh, Amit Tiwari, Amit
Yadav, Amit Sharma, Ms. Ruchira Gupta, Shishir Deshpande, Anurag
Sharma, Ms. Mona Sinha, Abhishek Kumar Srivastava, K.V.
Jagdishvaran, Mrs. G. Indira, V.G. Pragasam, S. Prabhu
Ramasubramanian, Advs. for the appearing parties.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 749
& ANR

The Judgments of the Court were delivered by A
ASHOK BHUSHAN, J. (for himself and S. Abdul Nazeer,
J.), L. Nageswara Rao, J. Hemant Gupta, J. and S. Ravindra Bhat
have also concurred on Question Nos. 1, 2 and 3.
1. This Constitution Bench has been constituted to consider
questions of seminal importance relating to contours and extent of special B
provisions for the advancement of socially and educationally backward
class (SEBC) of citizens as contemplated under Article 15(4) and
contours and extent of provisions of reservation in favour of the backward
class citizens under Article 16(4) of the Constitution of India. The
challenge/interpretation of the Constitution (102nd Amendment) Act, 2018 C
is also up for consideration.
2. All the above appeals have been filed challenging the common
judgment of the High Court dated 27.06.2019 by which judgment several
batches of writ petitions have been decided by the High Court. Different
writ petitions were filed before the High Court between the years 2014 D
to 2019, apart from other challenges following were under challenge:
The Ordinance No. XIII of 2014 dated 09.07.2014 providing
16% reservation to Maratha. The Ordinance No.XIV of 2014
dated 09.07.2014 providing for 5% reservation to 52 Muslim
Communities. The Maharashtra State Reservation (of seats for E
appointment in educational institutions in the State and for
appointment or posts for public services under the State) for
educationally and socially backward category (ESBC) Act, 2014
and Maharashtra State Socially and Educationally Backward Class
(SEBC) (Admission in Educational Institutions in the State and
for posts for appointments in public service and posts) Reservation F
Act, 2018 (hereinafter referred to as the “Act, 2018”).
3. The High Court by the impugned judgment upheld Act, 2018,
except to the extent of quantum of reservation provided under Section
4(1)(a), 4(1)(b) over and above 12% and 13% respectively as
recommended by Maharashtra State Backward Class Commission. The G
writ petitions challenging the Ordinance XIII and XIV of 2014 as well
as Act, 2014 were dismissed as having become infructuous. Few writ
petitions were also allowed and few detagged and other writ petitions
have been disposed of.
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750 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 4. Writ petition under Article 32 of the Constitution of India, namely,
Writ Petition(C) No. 938 of 2020 (Shiv Sangram & Anr. vs. Union of
India & Anr.) has been filed questioning the Constitution (102 nd
Amendment) Act, 2018.
5. While issuing notice on 12.07.2019, a three-Judge Bench of
B this Court directed that the action taken pursuant to the impugned judgment
of the High Court shall be subject to the result of the SLP. It was made
clear that the judgment of the High Court and the reservation in question
shall not have any retrospective effect. The three-Judge Bench after
hearing the parties, on 09.09.2020, while granting leave passed following
order:
C
“17. In view of the foregoing, we pass the following orders: -
(A) As the interpretation of the provisions inserted by the
Constitution (102nd Amendment) Act, 2018 is a substantial
question of law as to the interpretation of the Constitution of
D India, these Appeals are referred to a larger Bench. These
matters shall be placed before Hon’ble The Chief Justice of
India for suitable orders.
(B) Admissions to educational institutions for the academic
year 2020-21 shall be made without reference to the
E reservations provided in the Act. We make it clear that the
Admissions made to Post-Graduate Medical Courses shall not
be altered.
(C) Appointments to public services and posts under the
Government shall be made without implementing the
F reservation as provided in the Act.
Liberty to mention for early hearing. “
6. A Three-Judge Bench referring the matter to Constitution Bench
has referred all the appeals and the order contemplated that the matter
shall be placed before the Chief Justice for the suitable orders. Referring
G order although mention that the interpretation of Constitution (One
Hundred and Second Amendment) Act, 2018 is substantial question of
law as to the interpretation of the Constitution but the reference was not
confined to the above question. The learned counsel for the parties have
made elaborate submissions in all the appeals as well as the writ petitions
filed under Article 32. Elaborate submissions were addressed on the
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 751
& ANR. [ASHOK BHUSHAN, J.]

impugned judgment of the High Court. We thus have proceeded to hear A
the parties and decide all the appeals and writ petitions finally.
7. After appeals being referred to a larger Bench by order dated
09.09.2020, Hon’ble the Chief Justice of India has constituted this
Constitution Bench before whom these appeals and writ petitions are
listed. This Constitution Bench after hearing learned counsel for the B
parties passed an order on 08.03.2021 issuing notice to all the States.
The Bench by order further directed the States to file brief notes of their
submissions.
8. The hearing commenced on 15.03.2021 and concluded on
26.03.2021. At this stage, we may indicate the headings in which we C
have divided to comprehensively understand the issues, submissions, our
consideration, our conclusion and operative part of the judgment. The
following are the heads of subjects under which we have treated the
entire batch of cases:
(1) Questions Framed.
D
(2) Background Facts.
(3) Points for consideration before the High Court.
(4) Submissions of the parties.
(5) The 10 grounds urged for referring Indra Sawhney
judgment to a larger Bench. E
(6) The status of Reservation at the time of Enactment of
Act, 2018.
(7) Consideration of 10 grounds urged for revisiting and
referring the judgment of Indra Sawhney to a larger
Bench. F
(8) Principle of Stare Decisis.
(9) Whether Gaikwad Commission Report has made out a
case of extra-ordinary situation for grant of separate
reservation to Maratha community exceeding 50%
G
limit?
(10) Whether the Act, 2018 as amended in 2019 granting
separate reservation for Maratha community by
exceeding the ceiling limit of 50% makes out exceptional
circumstances as per the judgment of Indra Sawhney?
H
752 SUPREME COURT REPORTS [2021] 15 S.C.R.

A (11) Gaikwad Commission Report – a scrutiny.
(12) Whether the data of Marathas in public employment as
found out by Gaikwad Commission makes out cases for
grant of reservation under Article 16(4) of the
Constitution of India to Maratha community ?
B (13) Social and Educational Backwardness of Maratha
Community.
(14) The Constitution (102nd Amendment) Act, 2018.
(15) Conclusions.
C (16) Order.
9. On 08.03.2021 the six questions which were proposed to be
considered were enumerated in the following manner:
(1)Questions Framed.
D “1. Whether judgment in case of Indra Sawhney v. Union of
India [1992 Suppl. (3) SCC 217] needs to be referred to larger
bench or require re-look by the larger bench in the light of
subsequent Constitutional Amendments, judgments and
changed social dynamics of the society etc.?
E 2. Whether Maharashtra State Reservation (of seats for
admission in educational institutions in the State and for
appointments in the public services and posts under the State)
for Socially and Educationally Backward Classes (SEBC) Act,
2018 as amended in 2019 granting 12% and 13% reservation
for Maratha community in addition to 50% social reservation
F is covered by exceptional circumstances as contemplated by
Constitution Bench in Indra Sawhney’s case?
3. Whether the State Government on the strength of
Maharashtra State Backward Commission Report chaired by
M.C. Gaikwad has made 12 out a case of existence of
G extraordinary situation and exceptional circumstances in the
State to fall within the exception carved out in the judgment of
Indra Sawhney?
4. Whether the Constitution One Hundred and Second
Amendment deprives the State Legislature of its power to enact
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 753
& ANR. [ASHOK BHUSHAN, J.]

a legislation determining the socially and economically backward A
classes and conferring the benefits on the said community
under its enabling power?
5. Whether, States power to legislate in relation to “any
backward class” under Articles 15(4) and 16(4) is anyway
abridged by Article 342(A) read with Article 366(26c) of the B
Constitution of India?
6. Whether, Article 342A of the Constitution abrogates States
power to legislate or classify in respect of “any backward class
of citizens” and thereby affects the federal policy / structure
of the Constitution of India?” C
(2)Background Facts.
10. We need to first notice certain background facts relevant for
the present case and details of various writ petitions filed in the High
Court. The “Maratha” is a Hindu community which mainly resides in
the State of Maharashtra. After the enforcement of the Constitution of D
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
Kaka Kalelkar Commission submitted its report on 30.03.1955 where it E
observed - Vol.I “In Maharashtra, besides the Brahman it is the Maratha
who claimed to be the ruling community in the villages, and the Prabhu,
that dominated all other communities”. Thus, the first Backward Classes
Commission did not find Maratha as other backward class community in
the State of Bombay.
F
11. On 01.11.1956, a bilingual State of Bombay under the State
Re-organisation Act was formed with the addition of 8 districts of
Vidharbha (Madhya Bharat) and 5 districts of Marathwada (Hyderabad
State). On 14.08.1961 through Ministry of Home Affairs while declining
to act on the Kaka Kalelkar Commission Report informed all the State
Governments that they had discretion to choose their own criteria in G
defining backward classes and it would be open for State Governments
to draw its own list of other backward classes. On 14.11.1961 acting on
the directives of the Government of India, the Government of
Maharashtra appointed B.D.Deshmukh Committee for defining OBC
and to take steps for their developments. The B.D. Deshmukh Committee
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754 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 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. At serial No.87,
Kunbi was shown. The President of India on 31.12.1979 appointed the
second National Backward Classes Commission within the meaning of
B
Article 340 of the Constitution popularly known as Mandal Commission.
In the report of second National Backward Classes Commission with
regard to the State of Maharashtra while distributing percentage of Indian
population by castes and religious groups, estimated other backward
classes as 43.70 per cent, whereas in the category of forward Hindu
C castes and communities the Marathas were included with 2.2 per cent.
The population of other backward classes of remaining Hindu Castes
groups was estimated as 43.7% and backward non-Hindu classes as
8.40 per cent and total approximate backward class of Hindu including
non-Hindu castes was estimated as 52%. At page 56 of volume of report
under heading percentage of the castes and religious groups under sub-
D
heading forward Hindu castes and communities following table given:
III. Forward Hindu Castes & Communities

E

F

12. The Maratha, thus, was included in forward Hindu caste, by
G the second National Backward Classes Commission.
13. A request was received by the National Commission for
Backward Classes for inclusion of “Maratha” in the Central List of
Backward Classes for Maharashtra along with Kunbi as backward class
of Maharashtra. The National Commission for Backward Classes
H conducted public hearing at Mumbai and after hearing Government
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 755
& ANR. [ASHOK BHUSHAN, J.]

officials, Chairman of the Maharashtra State Backward Classes A
Commission submitted 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. It is useful to refer
to paragraph 22 of the report (last paragraph) which is to the following
effect:
B
“22. In view of the above facts and position, the Bench finds that
Maratha is not a socially backward community but is a socially
advanced and prestigious community and therefore the Request
for Inclusion of “Maratha” in the Central List of Backward Classes
for Maharashtra along with Kunbi should be rejected. In fact,
“Maratha” does not merit inclusion in the Central List of Backward C
Classes for Maharashtra either jointly with “Kunbi” or under a
separate entry of its own.”
14. On 16.11.1992 a nine-Judge Constitution Bench of this Court
delivered a judgment in Indra Sawhney v. Union of India [1992 Suppl.
(3) SCC 217] (hereinafter referred to as “Indra Sawhney’s case”), D
apart from laying down law pertaining to principle of reservation under
Constitution this Court also issued directions to the Government of India,
each of the State Governments to constitute a permanent body for
entertaining, examining and recommending upon on requests for inclusion
and complaints of over inclusion of other backward classes of citizens. E
15. 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 report in the end concluded:
“It was agreed with majority that the resolution, stating that it F
would not be appropriate from social justice perspective to include
Maratha community in the ‘Other Backward Class’ category, has
been passed with majority in the commission’s meeting convened
in Pune on 25/07/2008. And it was agreed with majority that such
a recommendation should be sent to the government. The opposite G
opinion in relation to this has been separately recorded and it has
been attached herewith.”
16. 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
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756 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 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
B
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. Writ Petition No.2053
of 2014 (Shri Sanjeet Shukla vs. State of Maharashtra) along with other
writ petitions were filed where two separate Ordinances promulgated
C on 09.07.2014 providing for reservation for seats for admissions in aided
and non-aided institutions of the State and appointment to the post to
public service under the State a separate 16% reservation in which
Maratha was included, was challenged. The Government resolution dated
15.07.2014 specifying the Maratha community as the community socially
and economically backward entitled for 16% reservation was challenged.
D
17. The Division Bench of the High Court by an elaborate order
considering the relevant materials including the reports of National
Backward Classes Commission and State Backward Classes
Commission and other materials on record stayed the operation of
Maharashtra Ordinance No.XIII of 2014 and Resolution dated
E 15.07.2014. However, it was directed that in case any admission has
already been granted in educational institution till that date based on
Ordinance No.XIII of 2014 the same shall not be disturbed and the
Students shall allow to complete their respective courses.
18. The SLP(C)Nos.34335 and 34336 were filed in this Court
F challenging interim order dated 14.11.2014 which SLPs were not
entertained by this Court with request to decide the writ petitions at an
early date.
19. The Maharashtra Legislature passed the Act, 2014 on
23.12.2014 which received the assent of the Governor on 09.01.2015,
G and was deemed to have come into force with effect from 09.07.2014.
In Writ Petition (C)No. 3151 of 2014 and other connected matters the
Division Bench of the Bombay High Court passed an order on 07.04.2015
staying the implementation of the provisions of the Act 1 of 2015 providing
16% reservation to Maratha. The interim order, however, directed that
appointment to 16% reservation for Maratha under Act 1 of 2015 in the
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 757
& ANR. [ASHOK BHUSHAN, J.]

advertisements already issued shall be made from open merit candidates A
till final disposal of the writ petition and appointment shall be made subject
to the outcome of the writ petition.
20. On 30.06.2017 the State Government made a reference to
State Backward Classes Commission to submit a report on the facts
and the observation made in the reference to the Government regarding B
Maratha. On 02.11.2017 Justice M.G. Gaikwad came to be appointed as
Chairman of State Backward Classes Commission. On 14.08.2018 the
National Commission for Backward Classes (Repeal) Act was passed
repealing the National Commission for Backward Classes Act, 1993.
On 15.08.2018 the Constitution (102nd Amendment) Act, 2018 was
brought into force adding Article 338B, 342A and 366(26C). Article 338, C
sub-clause (10) was also amended. On 15.11.2018, the State Backward
Classes Commission submitted its report on social and educational and
economic status of Maratha. The Commission recommended for declaring
Maratha caste of citizens as social and economic backward class of
citizens with inadequate representation in services. The Commission also D
opined that looking to the exceptional circumstances and extraordinary
situations on declaring Maratha class as SEBC and their consequential
entitlement to the reservation benefits, the Government may take decision
within the constitutional provisions. The Government after receipt of the
above report enacted Act, 2018 which was published on 30.11.2018 and
came into force from that day. PIL No.175 of 2018 (Dr. Jaishri E
Laxmanrao Patil Vs. The Chief Minister and Ors.) and other writ
petitions and PILs were filed challenging the Act, 2018. The High Court
in the impugned judgment has noticed the pleadings in three writ petitions
being PIL No.175 of 2018 giving rise to C.A.No.3123 of 2020, W.P.(LD.)
No.4100 of 2018 (Sanjeet Shukla vs. The State of Maharashtra) F
giving rise to C.A.No.3124 of 2020 and PIL No.4128 of 2018 (Dr.
Uday Govindraj Dhople & Anr. vs. The State of Maharashtra &
Anr.) giving rise to C.A.No.3125 of 2020. Before us in C.A.No.3123 of
2020 and C.A.No.3124 of 2020 most of the volumes and written
submissions have been filed. It shall be sufficient to notice these three
Civil Appeals, apart from the details of few other cases which shall be G
noted hereinafter.
C.A.No. 3123 of 2020 (Dr. Jaishri Laxmanrao Patil Vs. The
Chief Minister and Ors.)
21. This appeal has been filed against the judgment of the High
Court in PIL NO.175 of 2018 filed by Dr. Jaishri Laxmanrao Patil H
758 SUPREME COURT REPORTS [2021] 15 S.C.R.

A questioning the 16% separate reservation given to Maratha under Act,
2018 published on 30.11.2018. The writ petitioner pleaded that providing
reservation to Maratha community to the extent of 16% amounts to
breach of Article 14, 16 and 21 of the Constitution of India and also
bypassing ceiling of reservation of 50%. Referring to judgment of this
Court in Indra Sawhney’s case and law laid down in Mr. Nagraj and
B
others vs. Union of India & Ors. (2006) 8 SCC 212, it was pleaded
that the reservation is not permissible beyond 50%. Various grounds had
been taken in the writ petition questioning the 16% reservation for
Maratha. During the pendency of the writ petition subsequent events
occurred resulting into enlarging the scope of the petition, in the writ
C petition several applications for intervention and impleadment have been
filed seeking to justify the Act, 2018. The High Court allowed the
applications for intervention and they were directed to be added as party
respondents.
C.A.No. 3124 of 2020 (Sanjeet Shukla vs. The State of
D Maharashtra)
22. This appeal arises out of the judgment in Writ Petition (C)
No.4100 of 2018. In the writ petition an extensive challenge was made
to the Backward Classes Commission report which was basis for Act,
2018. The same writ petitioner i.e. Sanjeet Shukla has earlier filed Writ
E Petition (C) No.3151 of 2014 challenging the Ordinance promulgated by
the Government of Maharashtra in the year 2014. The interim order
dated 14.11.2014 was passed in the Writ Petition No.3151 of 2014. The
petitioner has also pleaded that the Act, 2014 was also stayed by the
High court on 07.04.2015. It was pleaded that Maratha community is a
powerful community in the State of Maharashtra with proved dominance
F in Government Service, Co-operatives, Sugar Co-operatives etc.
reference of earlier National Backward Class Commission and State
Backward Class Commission was made wherein the claim of Maratha
to be included in OBC was rejected. The comments have also been
made on the aggressive tactics adopted by the Maratha community by
G agitation, dharna for the grant of reservation to them. It was also pleaded
that Act, 2018 is passed without complying with the requirement of
Constitution (102nd Amendment) Act, 2018. In the writ petition following
prayers have been made:
“(a) Issue a writ, order or direction in the nature of certiorari or
any other appropriate writ, order or direction of that nature thereby
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 759
& ANR. [ASHOK BHUSHAN, J.]

quashing and striking down Maharashtra State Socially and A
Educationally Backward (SEBC) Class (Admission in Educational
Institutions in the State and for posts for appointments in public
service and posts) Reservation Act, 2018, as being invalid and
violative of the provisions of the Constitution of India;
(b) During pendency of the petition, this Hon’ble Court be pleased B
to say to the operation, implementation and effect of the
Maharashtra State Socially and Educationally Backward (SEBC)
Class (Admission in Educational Institutions in the State and for
posts for appointments in public service and posts) Reservation
Act, 2018;
C
b1. during pendency of the present petition, this Hon’ble Court be
pleased to issue an appropriate writ, order or direction that no
appointments should be made under Maharashtra State Socially
and Educationally Backward (SEBC) Class (Admission in
Educational Institutions in the State and for posts for appointments
in public service and posts) Reservation Act, 2018; D

b2. during pendency of the present petition, this Hon’ble Court be
pleased to issue an appropriate writ, order or direction of that
nature that no posts should be kept vacant by reference to the
Maharashtra State Socially and Educationally Backward (SEBC)
Class (Admission in Educational Institutions in the State and for E
posts for appointments in public service and posts) Reservation
Act, 2018;
b3. during pendency of the present petition, this Hon’ble Court be
pleased to issue an appropriate writ, order or direction of that
nature that no advertisements for vacancies should be placed F
reserving any posts under Maharashtra State Socially and
Educationally Backward (SEBC) Class (Admission in Educational
Institutions in the State and for posts for appointments in public
service and posts) Reservation Act, 2018;
b4. during pendency of the present petition, this Hon’ble Court be G
pleased to issue an appropriate writ, order or direction of that
nature that no admission in educational institutions should be made
under reserved category as per Maharashtra State Socially and
Educationally Backward (SEBC) Class (Admission in Educational
H
760 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Institutions in the State and for posts for appointments in public
service and posts) Reservation Act, 2018;
b5. during pendency Court be pleased to issue an appropriate
writ, order or direction of that nature that no Caste Certificates
should be issued under Maharashtra State Socially and
B Educationally Backward (SEBC) Class (Admission in Educational
Institutions in the State and for posts for appointments in public
service and posts) Reservation Act, 2018;”
C.A.No.3125 of 2020 (Dr. Uday Govindraj Dhople & Anr.
vs. State of Maharashtra & Anr.)
C 23. This appeal arises out of Writ Petition (LD.)No.4128 of 2018
filed by Dr. Udai Govindraj Dhople. The writ petition was filed in
representative capacity on behalf of the similarly situated medical
students/medical aspirants who are adversely affected by the Act, 2018.
24. The writ petitioners seek quashing of Act, 2018 and in the
alternative quashing and setting aside Sections 2(j), 3(2), 3(4), 4,5,9(2),10
D and 12 of the Act, 2018. The petitioner pleads that reservation system
has become a tool of convenience for the Government and politicians in
power for their vote bank. It is further pleaded that Maratha was never
treated as backward class community and earlier their claim was rejected.
It was further pleaded that the impugned enactment seriously prejudices
E the chances of open candidates in all fields of education as well as in
service. It was further pleaded that Gaikwad Commission’s report is not
based on fiscal data. There was inadequacy of data base. A community
which was found not to be backward for last 50 years is now declared
as backward class without any change of circumstances. The writ
petitioner, pleads that enactment shall have an adverse effect which
F shall divide the society by caste basis on communal line. The impugned
enactment is claimed to be violative of the basic structure and fundamental
value of the Constitution capitulated in Article 14, 16 and 19 of the
Constitution.
C.A.Nos. 3133, 3134 and 3131 of 2020
G 25. These appeals have been filed by the appellants who were
not parties in the PIL No.175 of 2018, against the High Court judgment
praying for permission to file SLP which has already been granted.
26. C.A.No. 3129 arising out of PIL(ST)No.1949 of 2019
whereby 16% reservation to Maratha under Act, 2018 has been
H challenged.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 761
& ANR. [ASHOK BHUSHAN, J.]

27. Writ Petition (C)No. 915 of 2020 has been filed under A
Article 32 of the Constitution of India praying for directing the respondents
that all the admission to Post Graduate Medical & Dental Courses in the
State of Maharashtra for the academic year 2020-21 shall be made
subject to the outcome of the SLP(C)No.15735 of 2019 and connected
petitions.
B
28. Writ Petition (C) No. 504 of 2020 filed under Article 32
has been filed seeking mandamus direction to the respondents that
provisions of Act, 2018 should not be made applicable to the admission
to Post Graduate Medical & Dental Courses in the State of Maharashtra
for the academic year 2020-21.
C
29. Writ Petition (C) No. 914 of 2020 filed under Article 32
prays for writ in the nature of certiorari or any other writ or order or
direction to hold the impugned Socially and Educationally Backward
Classes (SEBC) Act, 2018 as unconstitutional and violative of Article
14, 16 & 19 of the Constitution of India and further Act, 2018 should not
be made available to the medical admission process for Post-graduate D
students for the academic year 2020-21 in the State of Maharashtra.
30. C.A.No. 3127 of 2020 arises out of Writ Petition (C)No.4128
of 2018. The prayer of which writ petition has already been noticed by
C.A.No.3125 of 2020.
E
31. C.A.No. 3126 of 2020 has been filed against the impugned
judgment of the High Court in Writ Petition (C)No.3846 of 2019
(Mohammad Sayeed Noori Shafi Ahmed & Ors. vs. The State of
Maharashtra & Ors.). Writ Petitioners were challenging the Act, 2018
as well as the Maharashtra State Backward Class Commission Report
on the Social, Educational, Economic Status of the Marathas and Allied F
Aspects, 2018. The question was also raised about inaction on the part
of the State of Maharashtra in not acting upon the report of Maharashtra
State Minority Commission (2011) recommending special reservation to
certain Muslim communities and failure to introduce a Bill on the floor of
the State Legislature providing for 5% reservation to 52 Muslim G
communities in Maharashtra.
32. C.A.No. 3128 of 2020 arising out of Writ Petition (C)
No.4269 of 2018(Vishnuji P. Mishra vs. The State of Maharashtra)
wherein similar reliefs have been claimed as in PIL No.175 of 2018.
H
762 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 33. Writ Petition (C) No. 938 of 2018 has been filed under
Article 32 of the Constitution of India challenging the validity of
Constitution (102nd Amendment) Act, 2018. Writ Petition notices that
issue regarding Constitution (102nd Amendment) Act, 2018 is pending in
SLP(C)No.15737 of 2019(C.A.No.3123 of 2020). The writ petitioner
also claimed to have filed an I.A.No.66438 of 2020 for impleadment in
B
SLP(C) No. 15737 of 2019. The petitioner’s submission is that if the
effect of Constitution (102nd Amendment) Act, 2019 is to take away
power of State Legislature with respect to identification of OBC/SEBC,
it is obvious that Constitution (102nd Amendment) Act, 2018 has taken
away the legislative powers of State Legislature with respect to some
C areas of law making power. The petitioner, further, submits that the
procedure prescribed by the proviso to clause (2) of Article 368 of the
Constitution of India has not been followed since no ratification by the
legislatures of not less than one-half of the States by Resolution was
obtained. In the writ petition following prayers have been made:
D “a) This Hon’ble Court be pleased to hold and declare that the
102nd Amendment of the Constitution of India published in the
Gazette of India dated 11.08.2018 is unconstitutional being in
violation of proviso to clause (2) of Article 368 and also being
violative of the right guaranteed under Article 14 and 21 of the
Constitution of India.
E b) This Hon’ble Court please to issue a writ of mandamus or a
writ in the nature of mandamus or any other writ, order or direction
directing that the 102nd Amendment of the Constitution of India
shall not be enforced hereafter as a result of its being violative of
Article 368 as also the basic structure of the Constitution of India
F and also being violative of Article 14 and 21 of the Constitution of
India.”
34. In the writ petitions before the High Court, the State of
Maharashtra has filed affidavit in reply dated 16.01.2018 in Writ Petition
No.4100 of 2018 supporting the Act, 2018, which has been extensively
relied by the High Court in the impugned judgment. The affidavits were
G
also filed by the intervenors and affidavits were filed in support of
Chamber Summons. The High Court after perusing the writ petitions,
affidavits, applications filed by the interveners, Chamber Summons and
supporting other materials and after hearing counsel appearing for the
respective parties has broadly capitulated following points for
H consideration:
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 763
& ANR. [ASHOK BHUSHAN, J.]

(3) Points for consideration before the High Court. A
35. “(III) Whether the impugned Act of 2018 is constitutionally
invalid on account of lack of legislative competence on the
following sub-heads:-
(a) The subsisting interim order passed by the Bombay
High Court in Sanjeet Shukla vs. State of Maharashtra (WP B
3151/2014) thereby granting stay to a similar enactment and
ordinance of the State, which is pending for adjudication before
this Court.
(b) The 102nd (Constitution) Amendment, 2018 deprives
the State legislature of its power to enact a legislation C
determining the Socially and Educationally Backward Class
and conferring the benefits on the said class in exercise of its
enabling power under Article 15(4) and 16(4) of the Constitution.
(C) The limitation of 50% set out by the Constitution
bench in Indra Sawhney in form of constitutional principle do D
not permit reservation in excess of 50%.
(IV) Whether the State has been able to establish the social and
educational backwardness and inadequacy of representation of
the Maratha community in public employment on the basis of the
report of MSBCC under the Chairmanship of Justice Gaikwad on
E
the basis of quantifiable and contemporaneous data ?
(V) Scope of Judicial Review for interference in the findings,
conclusions and recommendation of the MSBCC.
(VI) Whether the reservation carved out for Maratha community
by the State Government in form of impugned legislation satisfies F
the parameters of reasonable classification under Article 14 of
the Constitution ?
(VII) Whether the ceiling of 50% laid down by the Hon’ble Apex
Court in case of Indra Sawhney vs. Union of India, is to be
taken as a constitutional principle and deviation thereof violates
G
the basic tenet of equality enshrined in the Constitution?
(VIII) Whether the State is able to justify existence of exceptional
circumstances or extra-ordinary situation to exceed the permissible
limit of 50% within the scope of guiding principles laid down in
Indra Sawhney ?
H
764 SUPREME COURT REPORTS [2021] 15 S.C.R.

A (IX) Whether in the backdrop of the findings, conclusions and
recommendations of the MSBCC report, whether the State
Government has justified exercise of its enabling power under
Article 15(4) and 16(4) of the Constitution ?”
36. The High Court in paragraph 177 of the judgment has
B summarised its conclusion to the following effect:
“177. In the light of the discussion above, we summarize
our conclusions to the points which we have formulated in the
proemial of the judgment and deliberated in the judgment. We
summarize our conclusions in the same sequence :
C [1] We hold and declare that the State possess the legislative
competence to enact the Maharashtra State Reservation for Seats
for Admission in Educational Institutions in the State and for
appointments in the public services and posts under the State (for
Socially and Educationally Backward Classes) SEBC Act, 2018
D and State’s legislative competence is not in any way affected by
the Constitution (102nd Amendment) Act 2018 and the interim
order passed by this Court in Writ Petition No. 3151 of 2014. We
resultantly uphold the impugned enactment except to the extent
of quantum of reservation as set out in point no. 6.

E [2] We conclude that the report of the MSBCC under the
Chairmanship of Justice Gaikwad is based on quantifiable and
contemporaneous data and it has conclusively established the
social, economical and educational backwardness of the Maratha
community and it has also established the inadequacy of
representation of the Maratha community in public employment /
F posts under the State. Accordingly we uphold the MSBCC report.
[3] We hold and declare that the classification of the Maratha
class into “Socially and Educationally Backward Class” complies
the twin test of reasonable classification permissible under Article
14 of the Constitution of India, namely, (a) intelligible differentia
G and (b) rational nexus to the object sought to be achieved.
[4] We hold and declare that the limit of reservation should not
exceed 50%, however in exceptional circumstances and extra-
ordinary situations, this limit can be crossed subject to availability
of quantifiable and contemporaneous data reflecting
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 765
& ANR. [ASHOK BHUSHAN, J.]

backwardness, inadequacy of representation and without affecting A
the efficiency in administration.
[5] We hold and declare that the report of the Gaikwad Commission
has set out the exceptional circumstances and extra-ordinary
situations justifying crossing of the limit of 50% reservation as set
out in Indra Sawhney’s case. B
[6] We hold and declare that the State Government in exercise of
its enabling power under Articles 15(4)(5) and 16(4) of the
Constitution of India is justified, in the backdrop of report of
MSBCC, in making provision for separate reservation to Maratha
community. We, however, hold that the quantum of reservation C
set out by the Maharashtra State Reservation for Seats for
Admission in Educational Institutions in the State and for
appointments in the public services and posts under the State (for
Socially and Educationally Backward Classes) SEBC Act, 2018,
in section 4(1)(a) and 4(1)(b) as 16% is not justifiable and
resultantly we quash and set aside the quantum of reservation D
under the said provisions over and above 12% and 13%
respectively as recommended by the Commission.”
In view of the conclusions, the High Court passed following order
in the batch of writ petitions:
E
“: O R D E R :
[A] In the light of summary of conclusions above, we dispose of
the following writ petitions / PILs by upholding the Impugned Act
of 2018 except to the extent of quantum of reservation prescribed
by section 4(1)(a) and 4(1)(b) of the said Act : F
1] PIL No. 175 of 2018,
2] WP (stamp No.) 2126 of 2019
3] WP (stamp No.) 2668 of 2019
4] WP (stamp No.) 3846 of 2019 G
5] PIL No. 140 of 2014
6] WP (Lodg. No.) 4100 of 2018
7] WP (Lodg. No.) 4128 of 2018.
8] WP (Lodg. No.) 4269 of 2018 H
766 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 9] PIL No. 6 of 2019.
10] WP (Lodg No.) 969 of 2019.
[B] The following writ petitions / PILs seeking implementation of
the Impugned Act of 2018, are also disposed of in view of the
Impugned Act being upheld except to the extent of quantum of
B reservation prescribed by section 4(1)(a) and 4(1)(b).
1] PIL No.19 of 2019 :- The petition is allowed in terms of
prayer clause (a).
2] PIL No.181 of 2018 :- The petition is allowed in terms of
C prayer clause (a). As far as prayer clause (b) is concerned,
we grant liberty to the petitioner to file a fresh petition in case
cause of action survives.
[C] The following writ petitions are rendered infructuous on
account of the passing of SEBC Act of 2018 which has repealed
D the earlier ESBC Act of 2015.
1] Writ Petition (Stamp No.) 10755 of 2017
2] PIL No. 105 of 2015
3] PIL No. 126 of 2019
E 4] PIL No. 149 of 2014
5] PIL No. 185 of 2014
6] PIL No. 201 of 2014
7] Writ Petition No. 3151 of 2014.”
F [D] The following writ petitions are de-tagged from the present
group of petitions as they claim reservation for the Muslim
communities.
1] Writ Petition No. 937 of 2017
2] Writ Petition No. 1208 of 2019
G
3] PIL No.209 of 2014
4] PIL (Stamp No.) 1914 of 2019.
[E] WP No.11368 of 2016:- The Petition is dismissed as far as
prayer clause (A) is concerned. As far as prayer (B) is concerned
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 767
& ANR. [ASHOK BHUSHAN, J.]

the petitioner is at liberty to file an appropriate Writ Petition seeking A
said relief.
[F] PIL (Stamp No.) 36115 of 2018 :- The is disposed of since the
recommendation of the commission are implemented in form of
the impugned SEBC Act, 2018.
[G] In the light of disposal of above writ petitions and PILs, all B
pending civil applications / notice of motions / Chamber Summons
taken out in these writ petitions and PILs do not survive and the
same are accordingly disposed of.”
37. Aggrieved with the impugned judgment of the High Court
dated 27.06.2019, the appellants have filed the Civil Appeals noted above C
in this Court.
38. We have heard Shri Arvind P. Datar, learned senior counsel,
Shri Shyam Divan, learned senior counsel, Shri Gopal Sankaranarayanan,
learned senior counsel, Shri Pradeep Sancheti, learned senior counsel,
Dr. Rajiv Dhawan, learned senior counsel, Shri Sidharth Bhatnagar, D
learned senior counsel, Shri B.H. Marlapalle, learned senior counsel,
Shri R.K. Deshpande, learned counsel, Dr. Gunratan Sadavarte, learned
senior counsel, Shri Amit Anand Tiwari, learned counsel and Shri S.B.
Talekar, learned counsel for the appellants. Shri Amol B. Karande, learned
counsel, has been heard in support of Writ Petition No.938 of 2020. E
39. We have heard Shri K.K. Venugopal, learned Attorney General
for India and Shri Tushar Mehta, learned Solicitor General. Shri Mukul
Rohatgi, learned senior counsel, has appeared for the State of
Maharashtra and Chhattisgarh. Shri Shekhar Naphade, learned senior
counsel, and Shri P.S. Patwalia, learned senior counsel, have also F
appeared for the State of Maharashtra. Shri Kapil Sibal, learned senior
counsel, has appeared for the State of Jharkhand. Dr. Abhishek Manu
Singhvi, learned senior counsel, has also appeared for the respondent
No.3 in C.A. No.3123 of 2020.
40. We have also heard several learned counsel appearing for
G
different States. Shri Manish Kumar, learned counsel has appeared for
the State of Bihar, Shri Karan Bharihok, has appeared for the State of
Punjab, Dr. Manish Singhvi, learned senior counsel, has appeared for
the State of Rajasthan. Shri C.U. Singh, learned senior counsel, has
appeared for the respondents. Shri Sudhanshu S. Choudhari, learned
counsel has appeared for some of the respondents, Shri V. Shekhar, H
768 SUPREME COURT REPORTS [2021] 15 S.C.R.

A learned senior counsel has appeared for the State of Maharashtra, Shri
S. Niranjan Reddy, learned senior counsel, has appeared for the State of
Andhra Pradesh, Shri Shekhar Nephade, learned senior counsel and
Shri Jayanth Muth Raj, learned senior counsel have appeared for the
State of Tamil Nadu. Shri Jaideep Gupta, learned senior counsel has
appeared for the State of Karnataka. Shri Vinay Arora, learned counsel,
B
has appeared for the State of Uttarakhand. Shri Arun Bhardwaj, learned
counsel, has appeared for the State of Haryana. Shri Amit Kumar, learned
counsel, has appeared for the State of Meghalaya. Shri Pradeep Misra,
learned counsel, has appeared for the State of U.P. and Shri Tapesh
Kumar Singh, learned counsel, has appeared for the Madhya Pradesh
C Public Service Commission. Ms. Diksha Rai, learned counsel, has
appeared for the State of Assam.
41. We have also heard Mrs. Mahalakshmi Pavani, learned senior
counsel, Shri A.P. Singh, learned counsel, Mr. Shriram Pingle, learned
counsel, Shri V.K. Biju, learned counsel, Shri Hrishikesh s. Chitaley,
D learned counsel, Shri Mr. Kaleeswaram Raj, learned counsel, and Shri
Ashok Arora for intervenors. Mr. Akash Avinash Kakade has also
appeared for the interveners.
42. Learned counsel for the parties have made elaborate
submissions on the six questions as noted above. Learned counsel for
E the parties have also made their respective submissions on the points for
consideration as was formulated by the High Court in the impugned
judgment. The elaborate submissions have also been made by the
petitioners challenging the various provisions of Act, 2018. Learned
counsel appearing for the petitioners have made scratching attack on
the Gaikwad Commission’s report, various data and details have been
F referred to by the petitioners to support their submissions that Maratha
community is not a socially and educationally backward class.
43. We shall now proceed to notice the submission advanced by
learned counsel including submissions of Attorney General for India in
seriatim.
G
(4) Submissions of the parties.
44. Shri Arvind Datar, learned senior counsel, led the arguments
on behalf of the appellant. Shri Datar submits that there is no need to
refer the judgment of Constitution Bench of this Court in Indra Sawhney
to an Eleven-Judge Bench. Reference to larger Bench can be made
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 769
& ANR. [ASHOK BHUSHAN, J.]

only for compelling reasons. No judgment of this Court has doubted the A
correctness of nine-Judge Constitution Bench of this Court in Indra
Sawhney’s case. On the other hand 50% limit for reservation has been
reiterated at least by four Constitution Bench judgments of this Court
rendered after judgment in Indra Sawhney’s case. All the High Courts
have uniformly accepted the limit of 50% reservation. In some States
B
where for political reasons 50% limit had been breached, it was struck
down repeatedly. The limit of 50% reservation laid down by the
Constitution Bench of this Court in Indra Sawhney is now an integral
part of the trinity of Article 14, 15 and 16 of the Constitution. Any
legislative or executive legislations against it are void and have to be
struck down. Shri Datar has specifically referred to the Constitution C
Bench judgment of this Court in M. Nagaraj vs. Union of India, (2006)
8 SCC 212 in which case the Constitution Bench of this Court laid
down that the State cannot obliterate the Constitutional requirement of
ceiling limit of 50%. It was held that if the ceiling limit of 50% is breached
the structure of quality and equality in Article 16 would collapse.
D
45. It was further held that even the State has compelling reason,
the State has to see that its reservation provision does not lead to
excessiveness so as to breach the limit of 50%. The request to refer the
judgment of Nagaraj has been refused by subsequent Constitution Bench
judgment of this Court in Jarnail Singh and others vs. Lachhmi Narain
Gupta and others, 2018(10) SCC 396. The parameters, when this E
Court revisits its judgments have been clearly laid down in which the
present case does not fall. The judgment delivered by nine-Judge Bench
needs to be followed under the principle of stare decisis. More so for
the last more than 28 years no judgment of this Court had expressed any
doubt about the law laid down by this Court in Indra Sawhney’s case. F
A very high threshold is to be crossed when reference is to be made to
eleven-Judge Bench. In law, certainty, consistency and continuity are
highly desirable. The Parliament has not touched 50% limit laid down
under Article 15(4) and 16(4) of the Constitution for the last several
decades.
G
46. The impugned judgment of the Bombay High Court is liable to
be set aside as it is contrary to the clear principle laid down in the Indra
Sawhney’s case. The High Court has not given any reason as to how
extra-ordinary situations as mentioned in paragraph 810 in Indra Sawhney
case is made out in the context of reservation for the Maratha caste/
H
770 SUPREME COURT REPORTS [2021] 15 S.C.R.

A community in Maharashtra. Exception and certain extra-ordinary
situations to the 50% principle carved out in Indra Sawhney does not
cover the case of Maratha since such “rule is confined to far flung and
remote areas, where they are out of main stream of national life”. Indra
Sawhney has also mandated extreme caution for going beyond 50%.
The reservation limit of 50% has also been applied in the decisions
B
rendered in the context of Article 243D and 243T of the Constitution of
India relating to Panchayats and Municipalities. The earlier reports of
National Commission for Backward Classes has rejected claim of
Maratha to be included in backward class. The opinion of National
Commission for Backward Classes cannot be disregarded by the State
C and in the event it had any grievance remedy of review was provided.
47. The Maratha community has been found to be socially
advanced and prestigious caste. It is submitted that limit of 50% is
essential right on part of equality which is part of basic structure. Even
members of Scheduled Tribes and Other Backward Classes who qualify
D on merit can continue to enjoy the benefit of merit quota. The limit of
50% as laid down in Indra Sawhney, only a Parliamentary amendment
is contemplated. Whenever Parliament wanted to get over 50% ceiling
limit laid down by Indra Sawhney, the constitutional Amendments were
brought, namely, Constitution 77th Amendment and Constitution 81st
Amendment.
E
48. Shri Datar has referred to various paragraphs of judgment of
this Court in Indra Sawhney. In support of his submission that majority
has laid down upper ceiling of 50% for providing reservation under Article
16(4) and 15(4), Shri Datar submits that the judgment of Indra Sawhney
cannot be confined only to Article 16(4) but the law was laid down
F taking into consideration Article 15(4) and 16(4).
49. Shri Shyam Divan, learned senior counsel for the appellant/
writ petitioner submits that social and financial status of Maratha
community has been examined by successive Commissions or
Committees up to June 2013 and each of the Commission and Committee
G did not recognise members of Maratha community as deserving for
reservation as backward class. Shri Divan has referred to Kalelkar
Commission Report (1955), Mandal Commission Report (1980) and
National Backward Class Commission Report (2000). He has also
referred to the Deshmukh Committee report which did not include the
H Maratha Community in the list of backward communities. Reference
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 771
& ANR. [ASHOK BHUSHAN, J.]

has also been made to the Khatri Commission (1995) and Bapat A
Commission (2008).
50. It is submitted that when the Maharashtra State Commission
for backward class declined to reconsider in the matter of reservation of
Maratha, the State Government appointed Narayan Rane Committee
who was a Minister in the State Government which submitted a report B
in 2014 that although Maratha Community may not be socially backward
but it recommended a new Socially and Economically Backward Class
(SEBC). Shri Divan has submitted that Gaikwad Commission which
submitted its Report on 15.11.2018 concluding that Maratha Community
in Maharashtra are socially, educationally and economically backward
and are eligible to be included in backward class category is completely C
flawed. It was not open for the Gaikwad Commission to ignore
determination by National Commission and State Committees/Commission
until June 2013 holding that Maratha are forward class in the State of
Maharashtra. The report failed to recognize the consequences of Maratha
Community being politically organised and being the dominant political D
class in Maharashtra for several decades. Politically organised classes
that dominate government are not backward in any Constitutional sense.
51. Coming to the Constitution (One Hundred and Second
Amendment), 2018, Shri Divan submits that 102nd Constitution
Amendment now contemplates identification by National Commission E
of Backward Classes. The Constitutional scheme which is delineated
by Article 341 and 342 has also been borrowed in Article 342A. The
identification of backward classes is now centralized. Shri Divan has
also highlighted adverse impact of the impugned act on medical admission
in the State of Maharashtra.
F
52. Law laid down by Constitution Bench in Indra Sawhney’s
case that reservation under Article 15(4) and 16(4) should not exceed
the upper limit of 50 percent has been followed and reiterated by several
judgments of this Court including Constitution Bench judgments. The
Gaikwad Commission report and the reason given by the report does not
make out any case for exception regarding Maratha Community to fall G
in extraordinary circumstances as contemplated in paragraph 810 of the
judgment in Indra Sawhney’s case.
53. Shri Gopal Sankaranarayanan, learned senior Counsel has
made his submission on the Constitution (One Hundred and Second
H
772 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Amendment), 2018. Shri Narayanan submits that after the Constitution
(One Hundred and Second Amendment), 2018, the State legislature could
not have passed the 2018 Act. Article 338B and 342A brought by the
Constitution (One Hundred and Second Amendment), mark see change
in the entire regime regarding identification of backward classes. The
power of the National Commission of Backward Classes as per Article
B
338B sub-clause (5) includes power to make reports and
recommendations on measures that should be taken by the Union or any
State. The National Commission for Backward Class is also required to
be now consulted both by the Union and the State. Article 366(26) states
that the phrase ‘Socially, Educationally and Backward Classes’ means
C such Backward Classes as are so deemed under Article 342A, for the
purposes of this Constitution which provision does not permit Socially,
Educationally and Backward Classes to have any other meaning. The
purposes of this Constitution, as occurring in Article 366(26C) shall also
apply to Article 16(4). After the Constitution (One Hundred and Second
Amendment), the States have no power to identify socially, educationally
D
and backward classes. The State Governments are still left free to decide
the nature or extent of provision that may be made in favour of socially
and educationally backward classes identified in accordance with Article
342A. When the power to determine SCs and STs have always been
centralized, it is absurd to suggest that allowing the same procedure for
E identification of socially, educationally and backward classes shall violate
federalism.
54. Shri Gopal Sankaranarayanan further submitted that the reliance
on Select Committee Report of Rajya Sabha is unwarranted. In the
Select Committee Report which was submitted in July 2018, there were
F several dissents, since many members of the Select Committee
understood that the Constitution (One Hundred and Second Amendment),
shall take away the power of the State to prepare their own list of socially,
educationally and backward classes. Article 342A has been brought in
the Constitution to achieve uniformity and certainty and not due to any
political reasons. There is no ambiguity in Article 342A which requires
G any external aid for interpretation.
55. Shri Sidharth Bhatnagar, learned counsel appearing for the
appellant also adopts the submissions of Mr. Datar and Mr. Gopal
Sankaranarayanan and submits that the judgment of this Court in M.R.
Balaji versus State of Mysore, AIR 1963 SC 649, had laid down that
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 773
& ANR. [ASHOK BHUSHAN, J.]

reservation under Article 15(4) shall be less than 50 percent which A
principle finds its approval in Indra Sawhney’s Case.In Indra
Sawhney’s Case, Eight out of Nine Judges took the view that reservation
cannot exceed 50 percent. He submits that judgment of Indra Sawhney
need not be referred to a larger Bench.
56. Mr. Pradeep Sancheti, learned senior Advocate, has confined B
his submissions to the Gaikwad Commission Report. He submits that
due difference to the opinion of the Commission does not mean that
opinion formed is beyond the judicial scrutiny. He submits that
backwardness has to be based on objective factors where inadequacy
has to factually exist. The Court while exercising power of Judicial Review
has to consider the substance of the matter and not its form, the C
appearance or the cloak, or the veil of the executive action is to be
carefully scrutinized and if it appears that Constitutional power has been
transgressed, the impugned action has to be struck down.
57. Shri Sancheti submitted that three National Backward Class
Commissions and three State Backward Class Commissions did not D
include Maratha Community as backward community which findings
and reasons could not have been given a goby by Gaikwad Commission
constituted in the year 2017. The Gaikwad Commission (hereinafter
referred to as Commission), survey, data results, analysis suffers from
various inherent flaws. The sample survey conducted by the Commission E
is skewed, unscientific and cannot be taken as a representative sample.
Sample size is very small. Out of 43,629 persons surveyed, only 950
persons were from the Urban Area. Mumbai was excluded from the
Survey. Sample size of total population was well below 0.02 percent.
The Commission assumes that the Maratha form 30 percent of the State’s
population. Without there being any quantifiable data, the Commission F
picked up and chose certain parameters whereas conveniently left out
many of the parameters where Maratha Community is better off. The
Commission has not provided a comparable State average for at least
28 of the parameters used in the study. When the State Average is not
on the record, treating those parameters as parameters of backwardness G
is wholly unfounded. The High Court in the impugned judgment has also
not met the submissions which were brought on record before the High
Court regarding the serious flaws committed by the Commission.
58. The marking system adopted by the Commission was not
rational; the Constitution of the Commission and experts was loaded in H
774 SUPREME COURT REPORTS [2021] 15 S.C.R.

A favour of the Maratha community since the majority of the members of
the Commission were all Marathas. It is submitted that Marathas are
the most dominant community not only in politics but also in other fields
such as educational institutions, sugar factories, agriculture etc. which
aspects are relevant criteria for identifying backwardness of a community.
The sample size was so small that no quantifiable data could have been
B
found.
59. Referring to Chapter 10 of the Commission’s report, Shri
Sancheti submits that no extraordinary situation as contemplated in
paragraph 810 of judgment of Indra Sawhney’s case could be made
out, even if all the findings given by the Commission are accepted to be
C true. The Commission has relied on outdated data for holding that
‘Marathas’ were ‘Shudras’. When an unscientific survey is done, an
unrealistic result is bound to come. There has been adequate
representation of Maratha Community in the Public Services. The
Commission erred in holding that the representation is not proportionate
D and recommended reservation under Article 16(4). The Commission has
not even adverted to the requirement regarding efficiency as contemplated
under Article 335 of the Constitution of India.
60. Shri Sancheti submits that more than 40 percent Members of
Parliament and 50 percent of Members of Legislative Assembly are
E Marathas. Shri Sancheti submits that the Commission’s report is only
paperwork which could not be accepted by the Court, while the Act,
2018, purports to create reservation for socially and economically
Backward Classes but in effect the enactment is reservation for only
Maratha which enactment is not sustainable.

F 61. Shri Sancheti submits that from the various data regarding
representation in jobs of Maratha community itself make it clear that
Maratha community is adequately represented in Public Services and
there is no Constitutional requirement for providing reservation under
Article 16(4). Shri Sancheti submits that the Commission has given undue
importance to the suicide by the Maratha farmers. He submits that from
G the data given in the report, the proportion of suicide of Maratha comes
to 23.56 percent which is even less from the proportion of 30 percent as
claimed by the Commission. The High Court by wrong appreciation of
facts concludes that those who committed suicide, 80.28 percent were
Marathas. There is no basis to attribute farmer suicide to Maratha
H Backwardness. Shri Sancheti submits that undue weightage has been
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 775
& ANR. [ASHOK BHUSHAN, J.]

given to the percentage of Maratha in ‘Dubbeywala class’ which cannot A
be any relevant consideration.
62. Dr. Rajeev Dhavan, appearing on behalf of the appellant,
submits that no case has been made out to review or refer the judgment
of this Court in Indra Sawhney’s case which is based on principles of
equality and reasonableness. Dr. Dhavan submits that in fact Indra B
Sawhney should be strengthened to make 50 percent strict subject to
dire restrictions and stronger judicial review. The Indra Sawhney should
be treated as a comprehensive decision on various aspects of reservation
as a whole and the attempt of the respondents to distinguish Indra
Sawhney on the basis that it was a decision only on Article 16(4) is
spurious. C

63. Dr. Dhavan, however, submits that in the judgment of Indra
Sawhney, a weak test for judicial scrutiny in matters within the subjective
satisfaction of the scrutiny was laid down i.e. test as laid down by this
Court in Barium Chemicals ltd. and another versus The Company
Law Board and others, AIR 1967 SC 295. Dr. Dhavan submits that D
there ought to be a strict scrutiny test and this Court may tweak this
aspect of Indra Sawhney so that the strict scrutiny test applies. The 50
percent test as has been articulated in the Indra Sawhney is based on
the principle of giving everyone a fair chance. 50 percent ceiling is based
on principle of equality to prevent reverse discrimination which is as E
much a principle that the Constitution records to equality as anything
else. The direction of Indra Sawhney that list of Other Backward Classes
be reviewed periodically is not being followed. Dr. Dhavan, however,
submits that the entire power of reservation has not been taken away
from the State.
F
64. Elaborating his submissions on the Constitution (One Hundred
and Second Amendment) Act, 2018, Dr. Dhavan submits that the essence
of 102nd Amendment as exemplified in Article 342A results in the
monopoly of identification even though implementation is left to the State.
His submission is that this is contrary to the basic structure of federalism
of the Constitution. In that it deprived the States of the crucial power of G
identification which was a very important power of the State under Article
15, 16 and 46. The obligation of the State in Article 15, 16 and 46 continue
to be comprehensive.
65. Alternate submissions advanced by Dr. Dhavan is that Article
342A can be read down to describe the power of the Centre in relation H
776 SUPREME COURT REPORTS [2021] 15 S.C.R.

A to the Central Services and leaving the identification and implementation
power of the States intact. Dr. Dhavan, however, submits that
Maharashtra legislature had the competence to enact the 2018 Act, even
though the Constitution (One Hundred and Second Amendment) had
come by that time. He, however, submits that any legislation which is
enacted will still be subject to Indra Sawhney and Nagraj principles.
B
66. Dr. Dhavan submits that various reports of Maharashtra in
fact found that it is not necessary to include Maratha despite their
persistent efforts. He submits that the test to be applied is “what has
happened since the last report negating inclusion of Maratha that now
requires a change to include them”. He submits that the logic of the
C principle is that if the Marathas were not backward for over Seventy
years, how they have suddenly become backward now. Dr. Dhavan
reiterates his submission that there is no judgment which has questioned
Indra Sawhney’s case. He submits that reservation under political
pressure, social pressure need not to be taken. A political obligation to
D the electorate is not a constitutional obligation. He further submits that
object of Article 16(4) is empowerment i.e. sharing of the State power.
He submits that Maratha are not deprived of sharing power; hence, no
case is made out for granting reservation under Article 16(4).
67. Shri B.H. Marlapalle, learned senior counsel, has also submitted
E that doctrine of extraordinary circumstances cannot be applied to a
dominant class of Society. He submits that the representation of Maratha
in the Legislative Assembly of the State is more than 50 percent and in
the Cabinet of the State they are more than 50 percent. After enforcement
of the Constitution, Marathas were never regarded as an Other
Backward Community. Three Central Commission and three State
F Commissions have rejected the claim of the Marathas to be backward.
68. Shri S.B. Talekar, appearing in Civil Appeal No.3126 of 2020
has submitted that Writ Petition No.3846 of 2019 was filed by Mohd.
Saeed Noori & Others, claiming reservation for Muslims. The High Court
although noted the submissions but had made no consideration. Learned
G Counsel contended that the State has no legislative competence to enact
the 2018 Act. He submits that power to legislate on the subject has been
taken away by virtue of 102nd Constitutional Amendment by adding
Article 342A in the Constitution of India. He also questioned the
composition of Gaikwad Commission.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 777
& ANR. [ASHOK BHUSHAN, J.]

69. Shri R.K. Deshpande, appearing for the appellant has also A
contended that by Article 342A, a separate mechanism has been
introduced for the purpose of identification of backward class. He submits
that there cannot be any State list of ‘Socially and Educationally Backward
Class’ after the 102nd Constitutional Amendment. He submits that
identification of the caste was never the exclusive domain of the States.
B
70. Shri Amit Anand Tiwari, appearing in writ petition i.e. W.P.
No.504 of 2020, referring to the Order dated 09.09.2020 contends that
Three-Judge Bench having refused the prayer to refer the Indra
Sawhney judgment to a larger Bench, the Said prayer needs no further
consideration. Shri Tiwari submits that present is not a case covered by
any exceptional circumstances as mentioned in the Indra Sawhney’s C
judgment. Historically, Marathas have been treated as a forward class
who are socially, economically and politically well-of. Prior to the report
of Gaikwad Commission, as many as six Commissions have held
Marathas are not entitled to be treated as a backward class. There has
been no change in the circumstances to include Maratha Community in D
the list of Backward Classes. With respect to 102nd Constitutional
Amendment, shri Tiwari submits that now States are not empowered to
notify a class of persons as socially and educationally backward for the
purposes of the Constitution. However, State’s power to confer benefits
on an already identified class of persons as SEBC as identified under
Article 342A remains intact. The High Court committed an error in holding E
that States still have power to identify class as SEBC. The High Court
erred in not appreciating the import of Article 366(26C).
71. We may also notice the submission of writ petitioner in
W.P.(civil) No.938 of 2020, challenging the 102 nd Constitutional
Amendment Act, 2018. F

72. Shri Amol B. Karande, learned counsel for the petitioner submits
that in event Article 342A read with Article 366(26C) of the Constitution
of India takes away the power of the State to identify a backward class,
the said Constitutional Amendment shall be violative of basic feature of
the Constitution, i.e. Federalism. G
73. He further submits that by the Constitutional Amendment, the
power of the State to legislate under various Entries under List-II and
List-III have been taken away, hence, it was obligatory to follow the
procedure as prescribed in Proviso to Article 368(2) of the Constitution
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778 SUPREME COURT REPORTS [2021] 15 S.C.R.

A of India, which having not done, the Constitutional Amendment is not
valid.
74. Learned Counsel submits that Article 366(26C) requires certain
clarification since there is no clarity regarding Central List and State
List. He submits that States shall have still power to legislate on the
B identification of the backward class.
75. Learned Attorney General, Shri K.K.Venugopal, has made
submissions on the 102nd Constitutional Amendment. Shri Venugopal
submits that he shall confine his arguments on the 102nd Constitutional
Amendment only. Referring to Article 12 of the Constitution, the learned
C Attorney General submits that the definition of the “State includes
Government and Parliament of India and Government and Legislature
of each State.” Under Article 15(4) and 16(4), the State has power to
identify the ‘Socially and Educationally Backward Class/Backward Class’
and take affirmative action in favour of such classes which power has
been regularly exercised by the State.
D
76. Learned Attorney General submits that the Constitution Bench
in Indra Sawhney held that there ought to be a permanent body, in the
nature of a Commission or a Tribunal to which inclusion and non-inclusion
of groups, classes and Sections in the list of Other Backward Classes
can be made. The Constitution Bench directed both the Union
E Government and the State Government to constitute such permanent
mechanism in the nature of a Commission.
77. Learned Attorney General submits that it is inconceivable that
no State shall have power to identify backward class, the direction issued
by the Nine-Judge Bench still continuing. He has referred to the judgment
F delivered by Justice Jeevan Reddy for himself and three other Judges
and judgment delivered by Justice Thommen and submits that the above
directions were the directions of the majority. Learned Attorney General
submits that no such amendment has been made by which the effect of
Article 15(4) and 16(4) have been impacted. He submits that National
G Backward Class Commission Act, 1993 was passed in obedience of
direction of this Court in Indra Sawhney’s case. He submits that Section
2(C) of 1993 Act refers to a Central list. Learned Attorney General has
also referred to Maharashtra Act No.34 of 2006, especially Section 2(C),
2(E) and Section 9(1) which refers to State List. He submits that Article
342A was to cover the Central list alone, the 1993 Act, having been
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 779
& ANR. [ASHOK BHUSHAN, J.]

repealed on 14.08.2018. The Attorney General has also referred to Select A
Committee Report dated 17.07.2017, paragraph 12, 18, 19 and 55 and
submits that Select Committee Report indicate that the intention of
Constitutional Amendment was not to take away the State’s power to
identify the Backward Class, the Select Committee Report clearly indicate
that State’s Commission shall continue to perform their duties.
B
78. Learned Attorney General submits that Central List as
contemplated under Article 342A (2) relates to employment under the
Union Government, Public Sector Corporation, Central institutions in
States where Central list was to be utilized. He submits that State
Government identification of Backward Class/Socially and Educationally
Backward Classes is not touched by Article 342A. C

79. Referring to Scheduled Castes and Scheduled Tribes learned
Attorney General submits that the power was given to the President
under the Constitutional Scheme and States had no concern at all with
Scheduled Castes/Scheduled Tribes. He submits that Article 342A deals
with the Central List for its own purpose whereas in every State, there D
is a separate State list of Other Backward Class. There was no attempt
to modify Articles 15(4) and 16(4) by the Parliament. Unless Articles
15(4) and 16(4) are amended, the State’s power cannot be touched.
80. Learned Attorney General had also referred to an affidavit
filed on behalf of Government of India in Writ Petition (Civil) No.12 of E
2021, Dinesh B. versus Union of India and others, in which affidavit
Union of India with respect to the Constitution (One Hundred and Second
Amendment) Act, 2018 has pleaded that power to identify and specify
the Socially and Educationally Backward Class list lies with Parliament,
only with reference to Central List of Socially and Educationally F
Backward Class. It is further pleaded that the State Government may
have their separate State list for Socially and Educationally Backward
Class for the purposes of providing reservation to the recruitment to
State Government Services or admission to the State Government
Educational Institutions. Learned Attorney General reiterates the above
stand in respect of the Constitution (One Hundred and Second G
Amendment) Act, 2018.
81. Referring to the Other Backward Caste list, with regard to
the State of Punjab, the learned Attorney General submits that in the
Central list, there are 68 castes and whereas in the State list, there are
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780 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 71 castes. Learned Attorney General submits that the question of validity
of the Constitution (One Hundred and Second Amendment) shall arise
only when the State’s power is taken away. Replying to the submissions
made by the learned counsel for the writ petitioner in W.P.No.938 of
2020, learned Attorney General submits that in the Constitution (One
Hundred and Second Amendment), there was no applicability of proviso
B
to Article 368(2). He submits that insofar as legislation under List-III is
concerned, since Parliament by legislation can override the States, hence,
by Constitutional Amendment, the same can very well be taken away.
82. Referring to Entry number 41 of List-II, the learned Attorney
General submits that Entry 41 has no concern with identification of
C backward class. The Constitution (One Hundred and Second
Amendment) does not amend the lists under Schedule VII; hence, there
is no requirement of ratification by the States.
83. Shri Mukul Rohtagi, learned senior counsel, appearing for the
State of Maharashtra has led the arguments. Shri Rohtagi has articulated
D his submissions in a very effective manner. Shri Rohtagi states that his
submission shall be principally confined to question No.1.
84. Shri Rohtagi submits that there are several reasons which
require that the Constitution Bench judgment in Indra Sawhney be
revisited, necessitating reference to the larger Bench of Eleven Judges.
E Shri Rohtagi during course of submission has handed over a chart giving
history of judgments on reservation. The chart makes reference of the
relevant paragraphs of judgments of this Court in M.R.Balaji versus
State of Mysore(Supra),T. Devadasan versus Union of India and
another, AIR (1964) SC 179, State of Punjab versus Hiralal and
F others, (1970) 3 SCC 567; State of Kerala and others versus N.M.
Thomas and others, (1976) 2 SCC 310; Akhil Bharatiya Soshit
Karamchari Sangh, (Railway) versus Union of India and others,
(1981) 1 SCC 246; K.C. Vasant Kumar and another versus State of
Karnataka, (1985) supp. (1) SCC 714; T.M.A. Pai Foundation and
others versus State of Karnataka and others, (2002) 8 SCC 481, M.
G Nagaraj and others versus Union of India and others, (2006) 8
SCC 212; S.V.Joshi versus State of Karnataka, (2012) 7 SCC 41;
Union of India and others versus Rakesh Kumar and others, (2010)
4 SCC 50; K. Krishnamurthy and others versus Union of India and
another ,(2010) 7 SCC 202; Chebrolu Leela Prasad Rao versus
State of Andhra Pradesh, (2020) SCC Online SC 383; Vikas
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 781
& ANR. [ASHOK BHUSHAN, J.]

kishanrao Gawali versus The State of Maharashtra, (2021) SCC A
Online SC 170 and Constitution Bench judgment of this Court in Indra
Sawhney. The Chart also indicates the reasons why Indra Sawhney’s
judgment requires a review. The Chart in a comprehensive manner
discloses the law on reservation prior to Indra Sawhney and subsequent
thereto.
B
85. We may now notice the Groundswhich have been emphasized
by Shri Mukul Rohtagi for referring the judgment of Indra Sawhney to
a larger Bench.
(5)The 10 grounds urged for referring Indra Sawhney
judgment to a larger Bench.
C
i) In the judgment of Indra Sawhney, there is no unanimity,
in view of different reasoning adopted in six separate
judgments delivered in the case. He submits that the
judgments are in three groups – one containing the judgment
of Justice Jeevan Reddy, which is for himself and three
other judges, which held that while 50 percent is the rule D
but in certain extraordinary situations, it can be breached.
Shri Rohtagi submits that Justice Pandian and Justice Sawant
have held that 50 percent can be breached, hence, the
majority opinion is that 50 percent can be breached. It is
only Justice Thommen, Justice Kuldip Singh and Justice E
R.M. Sahai who have held that 50 percent cannot be
breached. He submits that the judgment of majority opinion
in Indra Sawhney is being wrongly read as holding that 50
percent is the ceiling limit for reservation.
ii) Different judges from 1963 till date have spoken in different
voice with regard to reservation under 15(4) and 16(4) which F
is a good ground to refer Indra Sawhney judgment to a
larger Bench.
iii) The Balaji has held that Article 15(4) is an exception to
Article 15(1) which theory has not been accepted by this
Court in N.M. Thomas as well as Indra Sawhney, the G
very basis of fixing the ceiling of 50 percent has gone. Shri
Rohtagi submits that the Constitution of India is a living
document. The ideas cannot remain frozen, even the thinking
of framers of the Constitution cannot remain frozen for
times immemorial.
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782 SUPREME COURT REPORTS [2021] 15 S.C.R.

A iv) Neither Article 16(4) nor Article 15(4) contains any
percentage. The Court cannot read a percentage i.e. 50
percent for effecting reservation under Article 15(4) and
Article 16(4), providing a ceiling by number is cutting down
the Constitutional provisions of Part-III and Part-IV. Indra
Sawhney’s judgment has restricted the sweep of Article
B
15 and Article 16 of the Constitution. The Constitutional
provisions cannot be read down which principle is applicable
only with regard to statutes.
v) Judgment of Indra Sawhney is a judgment on Article 16(4)
and not on Article 15(4), hence, the ratio of judgment cannot
C be applied with regard to Article 15(4). He submits that
Indra Sawhney itself states that Article 15(4) and Article
16(4) are distinct and different provisions.
vi) The judgment of Indra Sawhney does not consider the
impact of Directive Principles of State Policy such as Article
D 39(b)(c) and Article 46, While interpreting Article 14, 16(1)
and 16(4).
vii) The 50 percentage ceiling limit was followed by Constitution
Bench of this Court in St. Stephen’s College versus
University of Delhi,(1992) 1 SCC 558, by upholding the
E procedure for admission of students in aided minority
educational institutions which ceiling limit of 50 percent has
been set aside by 11-Judge Bench judgment in T.M.A. Pai
Foundation (Supra). 11-Judge Bench judgment in T.M.A.
Pai judgment indicates that the ceiling of 50 percent is no
F longer available to be relied on even for purposes of Article
15 and Article 16.
viii) The Constitutional 77th and 81st Amendment Act inserting
Article 16(4)(A) and Article 16(4)(B) have the effect of
undoing in part the judgment of Indra Sawhney and thus
G mandating a re-look.
ix) The 103rd Constitutional Amendment by which 10 percent
reservation have been provided for Economically Weaker
Sections in addition to reservation given under Article 15(4)
and Article 16(4) is a clear pointer of overruling of 50 percent
ceiling for reservation under 15(4) and 16(4).
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 783
& ANR. [ASHOK BHUSHAN, J.]

x) The extraordinary circumstances as indicated in paragraph A
810 of Indra Sawhney’s case is not exhaustive, far flung
and remote areas mentioned therein are only illustrative.
There may be other exceptions where states are entitled to
exceed the 50 percent ceiling limit.
86. Shri P.S. Patwalia, appearing for the State of Maharashtra B
has advanced the submissions on rest of the questions. Shri Patwalia
has advanced submissions supporting the report of Gaikwad Commission.
He submits that Gaikwad Commission was appointed under the 2005
Act at the time when the challenge to 2014 Act was pending in the
Bombay High Court. He submits that there was no challenge to the
constitution of Gaikwad Commission before the High Court at any stage. C
He submits that if 30 percent Maratha are to be fit in 27 percent OBC
reservation, we will be giving them a complete mirage. Shri Patwalia
has taken us to the different chapters of the report and submits that the
Commission has mentioned about procedure, investigations and evidence
collected. He submits that quantifiable data was collected by the D
Commission through experts and three agencies appointed by the
Commission. Experts were also engaged to marshal the data and submit
their opinion. Chapter 10 of the report dealt with the exceptional
circumstances regarding Marathas justifying exceeding 50 percent ceiling
limit for reservation. He submits that the Commission has assessed the
Maratha population as 30 percent. E

87. Shri Patwalia submits that the scope of judicial review of a
Commission’s report is very limited. This Court shall not enter into
assessment of evidence to come to a different conclusion. He submits
that the Gaikwad Commission report is a unanimous report. After the
receipt of the report, the Act, 2018 was passed unanimously by the F
Legislative Assembly. The subjective satisfaction of the State
Government to declare a community as socially and educationally
backward is not to be easily interfered by the Courts in exercise of
Judicial Review Jurisdiction.
88. On the basis of the Commission’s report, the State Government G
arrived at the satisfaction that Maratha are socially and educationally
backward class which satisfaction need not be tested in Judicial Review
Jurisdiction. Formation of the opinion by the State is purely a subjective
process. This Court has laid down in several judgments that the
Commission’s report needs to be treated with deference. The High Court H
784 SUPREME COURT REPORTS [2021] 15 S.C.R.

A in the impugned judgment has elaborately considered the Gaikwad
Commission’s report and the other material including the reservation
which was granted to Other Backward Community in the year 1902 by
Sahuji Maharaj. He submits that the High Court had considered the
effect of reports given by the earlier Commissions in the impugned
judgment and gave reasons why earlier reports cannot operate detriment
B
to the Marathas.
89. It is submitted that method and manner of survey is to be
decided on by the Commission. No contrary data of any expert or
technical body has been placed before this Court by the appellants to
come to the conclusion that the data considered by the Commission was
C not relevant. The choice of parameters is essentially to be decided by
the expert body appointed to determine the backwardness. The statistics
of population of Maratha community is credible and rightly been accepted
by the Commission.
90. The Commission had given a common questionnaire to maintain
D uniformity for social, economical and educational backwardness. The
Commission has given relevant parameters. The Commission had
considered the number of representations received and collected. The
Commission also considered the objection for inclusion of Maratha as
backward class in Other Backward classes category and otherwise.
E 91. Shri Patwalia with respect to 102nd Constitutional Amendment
states that he adopts the submissions of learned Attorney General
completely. He submits that Article 342A and mechanism which has
been brought in force only relate to the Central list which is for the
purposes of appointment in posts under the Central Government or
F Educational Institutions under the control of the Central Government.
Shri Patwalia further submits that the Select Committee report relied by
the High Court is fully admissible for deciphering the history of legislation
and the intention of the Parliament. He further submits that today there
is no central list, hence, there is no question of affecting the State list.
He submits that it is premature to set aside the said action.
G
92. Shri Shekhar Naphade, learned senior counsel, appearing for
the State of Maharashtra, has elaborately dealt with the judgment of this
Court in M. R. Balaji(Supra). He submits that all subsequent judgments
providing a ceiling of 50 percent are based on Balaji’s Case and there
being several flaws in the said judgment, the case needs to be referred
H to larger Bench. He submits that 50 percent ceiling on reservation for
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 785
& ANR. [ASHOK BHUSHAN, J.]

Scheduled Caste, Scheduled Tribes and Other Backward Class is a judicial A
legislation which is impermissible. He further submits that reservation
cannot exceed 50 percent is not the ratio of judgment of Balaji. It is
submitted that Balaji has not considered the effect of the non obstante
clause contained in Article 15(4). Shri Naphade has also dealt with the
judgments of this Court in T.Devadasan(Supra), N.M. Thomas (Supra)
B
and Indra Sawhney.
93. Shri Naphade elaborating his submissions on Article 342A
submits that the State has legislative competence to prescribe reservation
to backward class. He has referred to Entry 25 of List-III and Entry 41
of List-II. He submits that a careful perusal of Article 342A indicates
that the scheme of this Article is substantially different from Article 341 C
and 342. The difference in the language of clause (2) of Article 342A as
compared to clause (2) of Article of 341 and 342 makes all the difference.
The view canvas by petitioners that 102nd Constitutional Amendment
takes away the legislative competence and legislative power of the States
runs counter to the basic structure of the Constitution and the scheme of D
distribution of power between the State and Centre. It is settled principle
of interpretation that by construing any provision of Act of Parliament or
Constitution, the legislative history of the relevant subject is necessary
to be seen.
94. Shri Kapil Sibal, senior advocate, appearing for the State of E
Jharkhand has advanced the submissions on all aspects of the matters
which are under consideration in the present batch of cases. He submits
that how balance for Article 14, 15 and 16 shall be maintained is matter
within the domain of the executive/State legislature. No Court should fix
the percentage for Article 15 and 16. In Indra Sawhney’s case, there
was no data for imposing a ceiling of 50 percent. Justice Jeevan Reddy F
did not rely on the Mandal Commission’s report. Mr. Sibal submits that
50 percent was not an issue in the Indra Sawhney. He submits that
parameters for Article 15(4) and Article 16(4) are entirely different where
Article 15 is eligibility and Article 16 is ability to get a job. Apart from
Balaji, all other judgments are on Article 16. He submits that question G
No.VI framed in Indra Sawhney’s case could not have been answered
without looking into the statistics. The concept of equality will differ
from State to State. There cannot be a strait Jacket formula. Why stop
reservation to only 50 percent when matter relates to affirmative action
by the State which is felt required by the concerned State. Limiting
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786 SUPREME COURT REPORTS [2021] 15 S.C.R.

A access to education to 50 percent will cause more problems than solved.
It is the State which has to look at the relevant percentage to be followed
in a particular case. In Indra Sawhney’s case, the Court was dealing
with Office Memorandum issued by Government of India where
reservation was less than 50 percent. The observation regarding 50
percent is only an Obiter. By the judgment of this Court in N.M. Thomas,
B
the basis of Balaji Case that Article 15(4) is an exception to Article
15(1) has gone. The whole judgment could not be relied on as a precedent
anymore. Whether a particular quota of reservation is violative of Article
15(1) depends on facts of each case. The State ought to be given a free
hand to pick the percentage as per need and requirement of each State.
C There is no judicial power to pick a percentage.
95. Shri Sibal giving illustration of Kendriya Vidyalaya submitted
that General students cannot come and those institutions cater only to
the employees of Government, Army; and the General can only come
when the seats are vacant. He submits that the balance has to be done
D by the executive and not by the Court. These are the issues which need
to be decided by a larger Bench. These issues having never been
addressed before this Court in Indra Sawhney’s case, the matter needs
to be referred to a larger Bench.
96. The Constitution of India is a living, transformative document.
E The Court cannot shackle the legislature. Shri Sibal submits that 50 percent
limit for reservation prescribed in Indra Sawhney is no longer a good
law after 103rd Constitutional Amendment which inserted Article 15(6)
and Article 16(6) into the Constitution. Several States have already
provided for reservation beyond 50 percent to Scheduled Caste,
Scheduled Tribe and Socially and Educationally Backward class. In the
F above circumstances, it is necessary that these matters may be referred
to a larger Bench for fresh adjudication.
97. Shri Sibal on Article 342A submits that under Articles 15(4)
and 16(4) the Union and the States have co-equal powers to advance
the interest of socially and educationally backward classes. Any exercise
G of power by the Union cannot encroach upon the power of the State to
identify and empower the socially and educationally backward classes
and determine the extent of reservation required. The expression, “for
the purposes of this Constitution” can therefore only be construed within
the contours of power that the Union is entitled to exercise with respect
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 787
& ANR. [ASHOK BHUSHAN, J.]

to entities, institutions, authorities and Public Sector Enterprises under A
the aegis and control of the Union.
98. The expression “Central List” in Article 342A(2) relates to
the notification under Article 342A(1), wherein the Central List will
include identification of socially and educationally backward classes for
the purposes of entities, institutions, authorities and public sector B
enterprises in a State, but under the aegis or control of the Union. Any
other interpretation would allow an executive act to whittle down the
legislative power of the States to provide for the advancement of the
socially and educationally backward classes, under Articles 15(4), 15(5)
as well as in Article 16(4), which are an integral part of the chapter on
fundamental rights. C

99. Article 342A and Article 342A(1) and 342A(2) must be
interpreted in the historical context and developments both pre and post
Indra Sawhney, where the identification of the socially and educationally
backward classes in the State lists was the basis for determining the
extent of reservations. In this regard, the use of the word “Central list” D
is of significance, as opposed to Articles 341 and 342, which only use the
expression “list” in the context of identification of Scheduled Castes and
Scheduled Tribes. This is because historically, Scheduled Castes and
Tribes were identified by the Government of India and accepted by the
States. E
100. Learned Solicitor General Shri Tushar Mehta, submits that
he adopts the submissions made by learned Attorney General. He submits
that 102ndConstitutional Amendment shall not dilute the power of the
State. Article 342A (1) is only enabling provision. The Act, 2018, does
not violate 102ndConstitutional Amendment. F
101. Dr. Abhishek Manu Singhvi, appearing for the respondent
submits that State’s power was never intended to be taken away. He
submits that material including discussion in reports of Parliamentary
Committee are fully admissible and has to be relied for finding the intent
and purpose of a Constitutional provision. Dr. Singhvi has elaborately G
taken us to the proceedings of the Select Committee and its report. Dr.
Singhvi has cited the Constitution Bench judgment of this Court in
Kalpana Mehta and others versus Union of India and others, (2018)
7 SCC 1.He has also referred to the Statements of objects of 123rdBill
which notices that there were State lists prior to Indra Sawhney. The
Central list was confined to Central Institutions and Central Government H
788 SUPREME COURT REPORTS [2021] 15 S.C.R.

A posts. Shri Singhvi has also referred to 1993 Act and submits that in the
said Act Section 2(C) referred to a list which was only a Central list.
Article 342A(2) uses the same Central list and interpretation of Article
342A(2) has to be made taking the same meaning of Central list as was
known and understood under the regime prior to 102 nd Constitutional
Amendment Act. This Court shall not annotate the State’s power under
B
some interpretive exercise. Dr. Singhvi further submits that today there
is no Central list under Article 342A, there being no occupied field, it its
premature and academic.
102. Shri C.U. Singh, learned senior Advocate, appearing for
respondents has referred to Gaikwad Commission’s report in detail. He
C has referred to data collected and reflected in the report and submit that
the Commission on the basis of quantifiable data has determined Maratha
as socially and educationally backward community. He has also referred
to Chapter 10 of the report which carves out exceptional circumstances
for exceeding 50 percent limit. Shri C.U. Singh has taken the Court to
D various tables and charts regarding representation of Maratha Community
in the Public services, Universities and Higher Institutions. Shri C.U.
Singh submits that the representation in the public services is not in
accordance with the proportion of population of Maratha. He submits
that backwardness has to come from living standard, job. The Commission
has found that Marathas to be more in Agriculture and in Agricultural
E labour. He submits that we need to take into consideration the overall
situation.
103. Learned Counsel for the State of Bihar, State of Punjab,
State of Rajasthan, State of Andhra Pradesh, State of Tamil Nadu, State
of Kerala, State of Assam, State of Uttar Pradesh, State of Haryana
F have also advanced the similar submissions as advanced by the State of
Maharashtra that 102nd Constitutional Amendment shall not take away
power of the legislative/executive power of the State to identify OBC
and to take measures for implementation of reservation. All State’s
counsel submitted that there has always been two lists i.e. Central List
G and State List. It is submitted that any other interpretation shall violate
the federal structure as envisaged in the Constitution of India.
104. Shri Amit Kumar, learned Advocate General, Meghalaya,
submits that in State of Meghalaya there are about 85.9 percent tribal
population. He submits that reservation allowed in State of Meghalaya
H is in accord with paragraph 810 of the Indra Sawhney’s judgment.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 789
& ANR. [ASHOK BHUSHAN, J.]

105. Shri Vinay Arora, learned counsel appearing for State of A
Uttarakhand, submits that State has two lists one drawn by State and
another Central list. He adopts the arguments of learned Attorney
General. Shri Vinay Arora submits that judgment of Indra Sawhney
need not to be referred to a larger Bench. He submits that affirmative
action under Articles 16(4) and 15(4) are facets of Article 14.
B
106. We have also heard various counsel appearing for interveners.
Most of the interveners have adopted the submissions of the State of
Maharashtra. However, learned counsel Shri A.P.Singh and Shri B.B.
Biju, appearing for different interveners submits that judgment of Indra
Sawhney need not be referred to larger Bench. They submitted that C
after seventy years, there has been upliftment. The reservation is affecting
the merit as well as the society.
107. We have heard learned counsel for the parties and perused
the records.
108. All the relevant materials which were before the High Court D
have been compiled in different volumes and filed for convenience.
Learned counsel for the parties during submissions have referred various
materials including necessary relevant enactments and reports. From
various volumes a master index containing all details of volumes has
also been prepared and submitted. Before we enter into submissions of E
the learned counsel for the parties on six questions framed by us and the
impugned judgment of the High Court including points for consideration
noted in the judgment of the High Court, we need to first look into the
statutory provisions pertaining to reservation in force at the time when
Act, 2018 was enacted.
F
(6)The status of Reservation at the time of
commencement of Enactment of Act, 2018
109. The State of Maharashtra has issued a unified list of OBC
consisting of 118 castes on 13.08.1967. On 10.09.1993 after the judgment G
of this Court in Indra Sawhney case, the Central List of OBC was
issued by the Ministry of Welfare, Government of India notifying the
Central List of OBC consisting of more than 200 castes. The Central
List of OBC as on date contains about 252 OBC. The Government
of Maharashtra by its Government decision dated 07.12.1994 created
H
790 SUPREME COURT REPORTS [2021] 15 S.C.R.

A special backward category containing several castes and communities.
The Maharashtra State Public Services Reservation for Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes,
Special Backward Category and other Backward Classes) Act, 2001
was enacted which was published in the Maharashtra Government
Gazette on 22.01.2004. Section 2(b) defines De-notified Tribes. Section
B
2(f) defines Nomadic Tribes. Section 2(g) defines Other Backward
Classes and Section 2(k) defines reservation and Section 2(m) defines
Special Backward Category. Sections 2(b), 2(f), 2(g), 2(k) and 2(m) are
as follows:

C “Section 2(b) “ De-notified Tribes (Vimukta Jatis) “ means
the Tribes declared as such by the Government from time to time;
2(f) “Nomadic Tribes “ means the Tribes wandering from
place to place in search of their livelihood as declared by
Government from time to time ;
D 2(g) “Other Backward Classes” means any socially and
educationally backward classes of citizens as declared by the
Government and includes Other Backward Classes declared by
the Government of India in relation to the State of Maharashtra ;
2(k) “reservation” means the reservation of post in the
E
services for the members of Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Special
Backward Category and Other Backward Classes;
2(m) “Special Backward Category” means socially and
F educationally backward classes of citizens declared as a Special
Backward Category by the Government.”
110. Section 4 provides for reservation and percentage. Section
4(2) is as follows:
Section 4(2) Subject to other provisions of this Act, there
G
shall be posts reserved for the persons belonging to the Scheduled
Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Special Backward Category and Other
Backward Classes, at the stage of direct recruitment in public
services and posts specified under clause (j) of section 2, as
H provided below:-
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 791
& ANR. [ASHOK BHUSHAN, J.]

______________________________________________ A
Description of Caste/Tribe/ Percentage of
Category/Class vacancies reservation
Or seats to be reserved
______________________________________________ B
(1) Scheduled Castes .. 13 per cent.
(2) Scheduled Tribes .. 7 per cent.
(3) De-notified Tribes (A) .. 3 per cent.
(4) Nomadic Tribes (B) .. 2.5 per cent. C
(5) Nomadic Tribes (C) .. 3.5 per cent.
(6) Nomadic Tribes (D) .. 2 per cent.
(7) Special Backward Category .. 2 per cent.
(8) Other Backward Classes .. 19 per cent. D
_____________
Total .. 52 per cent.
_____________________________________________”
E
111. The Maharashtra State Commission for Backward Classes
Act, 2005 was enacted by the State Legislature providing for constitution
of State level Commission for Backward Classes other than the
Scheduled Castes and Scheduled Tribes and to provide for matters
connected therewith or incidental thereto. Section 2(e) defined the Lists
in following words: F
“Section 2(e) “Lists” means the Lists prepared by the State
Government, from time to time, for the purposes of making
provision for the reservation of appointments or posts, in favour
of the backward classes of citizens who, in the opinion of the
State Government, are not adequately represented in the services G
under the State Government and any local or other authority within
the State or under the control of the State Government;”
112. Section 9 of the Act deals with functions of the Commission
in the following words:
H
792 SUPREME COURT REPORTS [2021] 15 S.C.R.

A “Section 9.(1) It shall be the function of the Commission,—
(a) to entertain and examine requests for inclusion of
any class of citizens as a backward class in the Lists ;
(b) to entertain, hear, enquire and examine complaints
of over-inclusion or under-inclusion of any backward class in
B such Lists and tender such advice to the State Government as
it deems appropriate;
(c) to take periodical review and make recommendations
to the State Government regarding the criteria and methodology
of determining the backward class of citizens ;
C
(d) to cause studies to be conducted on a regular basis
through and in collaboration with reputed academic and research
bodies for building of data about the changing socio-economic
status of various classes of citizens;

D (e) to regularly review the socio-economic progress of
the backward class of citizens ; and (f ) to perform such other
functions as may be prescribed.
(2) The advice given or recommendations made by the Commission
under this section shall ordinarily be binding on the State
Government and the State Government shall record reasons in
E
writing, if, it totally or partially rejects the advice or
recommendations or modifies it.”
113. Another Enactment, namely, Maharashtra Private Professional
Educational Institutions (Reservation of seats for admission for Scheduled
Castes, Scheduled Tribes, De-notified Tribes(Vimukta Jatis), Nomadic
F
Tribes and Other Backward Classes) Act, 2006 was enacted which
was published in Maharashtra Gazette on 01.08.2006. Section 2 defines
various expressions including Nomadic Tribes and Other Backward
Classes in other words. Section 4 provided that in every Aided Private
Professional Educational Institution, seats equal to 50% shall be reserved
G for candidates belonging to the Reserved Category. Section 4 of the Act
is as follows:
“Section 4. (1) In every Aided Private Professional Educational
Institution, seats equal to fifty per cent. of the Sanctioned Intake
of each Professional Course shall be reserved for candidates
H belonging to the Reserved Category.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 793
& ANR. [ASHOK BHUSHAN, J.]

(2) The seats reserved for candidates belonging to the Reserved A
Category under sub-section (1) shall be filled in by admitting
candidates belonging to the Scheduled Castes, Scheduled Tribes,
De-notified Tribes (Vimukta Jatis), Nomadic Tribes and Other
Backward Classes, respectively, in the proportion specified in the
Table below :–
B
__________________________________________________
Description of Caste/Tribe/ Percentage of
Category/Class of Reserved reservation
Category C
__________________________________________________
(1) Scheduled Castes and Scheduled 13%
Castes converts to Buddhism
(2) Scheduled Tribes 7% D
(3) De-notified Tribes(A) 3%
(4) Nomadic Tribes(B) 2.5%
(5) Nomadic Tribes(C) 3.5%
(6) Nomadic Tribes(D) 2% E
(7) Other Backward Classes 19%
_______________
Total 50%
________________________________________________”
F
114. As noted above, at the time of enactments of above 2001
and 2006 Acts, list containing Other Backward Classes had been existing
which was issued by the State Government from time to time. By GR
dated 26.09.2008, the State of Maharashtra extended the list of OBC
to include 346 castes. We have already noticed that the Maharashtra
G
State Reservation (of seats for admission in educational institutions in
the State and for appointments or posts in the public services under the
State) for Educationally and Socially Backward Category (ESBC) Act,
2014 was enacted by the State Legislature which received the assent of
the Governor on 09.01.2015. In the said Act Maratha community was
H
794 SUPREME COURT REPORTS [2021] 15 S.C.R.

A declared as Educationally and Socially Backward Category (ESBC).
The implementation of the Act was stayed by the High Court by its
order dated 07.04.2015 passed in Writ Petition No.3151 of 2014 which
continued in operation till the writ petition was dismissed as infructuous
by the impugned judgment. From the Acts 2001 and 2006 as noted above,
it is clear that the percentage of reservation in the State of Maharashtra
B
in Public Services was 52% whereas percentage of reservation of seats
for admission for SC and ST, De-notified Tribes and Nomadic Tribes
and Other Backward Classes in Private Professional Educational
Institutions was 50% at the time of enactment of Act, 2018. We may
also notice certain relevant provisions of Act LXII of 2018. The Preamble
C of the Act reads:
“An Act to provide for reservation of seats for admission in
educational institutions in the State and for reservation of posts
for appointments in public services and posts under the State, to
Socially and Educationally Backward Classes of Citizens (SEBC)
D in the State of Maharashtra for their advancement and for matters
connected therewith or incidental thereto.
WHEREAS it is expedient to provide for reservation of seats for
admission in educational institutions in the State and for reservation
of posts for appointments in public services and posts under the
E State to Socially and Educationally Backward Classes of Citizens
(SEBC) in the State of Maharashtra for their advancement and
for matters connected therewith or incidental thereto ; it is hereby
enacted in the Sixty-ninth Year of the Republic of India, as
follows:—”
F 115. Section 2(1)(j) provides that Socially and Educationally
Backward Classes of Citizens (SEBC) includes the Maratha community.
Section 2(1)(j) is as follows:
“2(1)(j) “Socially and Educationally Backward Classes of Citizens
(SEBC)” includes the Maratha Community declared to be
G Educationally and Socially Backward Category (ESBC)in
pursuance of the Maharashtra State Reservation (of seats for
admission in educational institutions in the State and for
appointments or posts in the public services under the State) for
Educationally and Socially Backward Category (ESBC) Act,
2014.”
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 795
& ANR. [ASHOK BHUSHAN, J.]

116. Section 3 provides for applicability to all the direct A
recruitments, appointments made in public services and posts in the State
which is as follows:
“3. (1) This Act shall apply to all the direct recruitments,
appointments made in public services and posts in the State
except,— B
(a) the super specialized posts in Medical, Technical and
Educational field ;
(b) the posts to be filled by transfer or deputation ;
(c) the temporary appointments of less than forty-five days C
duration ; and
(d) the post which is single (isolated) in any cadre or grade.
(2) This Act shall also apply, for admission in educational institutions
including private educational institutions, whether aided or un-aided
by the State, other than the minority educational institutions referred D
to in clause (1) of article 30 of the Constitution of India.
(3) The State Government shall, while entering into or renewing
an agreement with any educational institution or any establishment
for the grant of any aid as provided in the explanation to clauses
(d) and (e) of section 2, respectively, incorporate a condition for E
compliance with the provisions of this Act, by such educational
institution or establishment.
(4) For the removal of doubts it is hereby declared that nothing in
this Act shall affect the reservation provided to the Other Backward
Classes under the Maharashtra State Public Services (Reservation F
for Scheduled Castes, Scheduled Tribes, De-notified Tribes
(Vimukta Jatis), Nomadic Tribes, Special Backward Category and
Other Backward Classes) Act, 2001 and the Maharashtra Private
Professional Educational Institutions (Reservation of seats for
admission for Scheduled Castes, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward G
Classes) Act, 2006.”
117. Section 4 deals with seats for admission in educational
institutions and appointments in public services and posts under the State
or SEBC. Section 4 is as follows:
H
796 SUPREME COURT REPORTS [2021] 15 S.C.R.

A “4. (1) Notwithstanding anything contained in any judgment,
decree or order of any Court or other authority, and subject to the
other provisions of this Act,—
(a) sixteen per cent. of the total seats in educational institutions
including private educational institutions, whether aided or un-
B aided by the State, other than minority educational institutions
referred to in clause (1) of article 30 of the Constitution of
India ; and
(b) sixteen per cent. of the total appointments in direct
recruitment in public services and posts under the State, shall
C be separately reserved for the Socially and Educationally
Backward Classes (SEBC) including the Maratha Community:
Provided that, the above reservation shall not be
applicable to the posts reserved in favour of the Scheduled
Tribes candidates in the Scheduled Areas of the State under
D the Fifth Schedule to the Constitution of India as per the
notification issued on the 9th June 2014 in this behalf.
(2) The principle of Creamy Layer shall be applicable for
the purposes of reservation to the Socially and Educationally
Backward Classes (SEBC) under this Act and reservation under
E this Act shall be available only to those persons who are below
Creamy Layer.
Explanation.—For the purposes of this sub-section, the
expression “Creamy Layer” means the person falling in the
category of Creamy Layer as declared by the Government in the
F Social Justice and Special Assistance Department, by general or
special orders issued in this behalf, from time to time.”
118. We have already noticed that in the writ petitions filed before
the High Court, Act, 2018 was challenged being invalid and violative of
the provisions of the Constitution of India.
G (7) Consideration of 10 Grounds urged for revisiting and
referring the judgment of Indra Sawhney to a larger Bench.
119. Shri Mukul Rohtagi as well as Shri Kapil Sibal, learned senior
counsel have submitted that judgment of Indra Sawhney needs to be
revisited and refer to a larger Bench of eleven Judges.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 797
& ANR. [ASHOK BHUSHAN, J.]

120. We shall proceed to consider the grounds given by Shri Mukul A
Rohtagi in seriatim which shall also cover the grounds raised by Shri
Sibal.
121. First ground of Shri Rohatgi is that it is only three Judges,
Justice T.K. Thommen, Justice Kuldip Singh and Justice R.M. Sahai
who held that 50% reservation cannot be breached whereas other six B
Judges have held that 50% can be breached, hence, majority opinion in
Indra Sawhney does not hold that 50% is the ceiling limit for reservation.
For considering the above submission we need to notice the opinion
expressed in each of the six judgments delivered in Indra Sawhney’s
case.
122. Before we proceed to notice the relevant paragraphs of the C
judgment of Indra Sawhney, we need to first notice method of culling
out the majority opinion expressed in a judgment where more than one
judgments have been delivered. The Constitution Bench of this Court in
Rajnarain Singh vs. Chairman, Patna Administration Committee,
Patna and another, AIR 1954 SC 569, had occasion to find out the D
majority opinion of a seven-Judge Bench judgment delivered by this Court
in Re Delhi Laws Act, 1912, Ajmer-Merwara (Extension of
Laws)Act, 1947 vs. Part ‘C’ States(Laws) Act, 1950, AIR 1951
SC 332. The Constitution Bench laid down that opinion which
embodies the greatest common measures of the agreement among the
Bench is to be accepted the decision of the Court. Thus, for culling out E
the decision of the Court in a case where there are several opinions, on
which there is greatest common measure of agreement is the decision
of the Court.
123. We now revert back to the judgment of Indra Sawhney to
find out what is the greatest common measures of the agreement between F
the Judges with regard to the reservation to the extent of 50%. Justice
B.P. Jeevan Reddy for himself, M.H. Kania, CJ, M.N.Venkatachaliah,
A.M. Ahmadi, JJ., has elaborately dealt with the extent of the reservation
under Article 16(4). In paragraph 809 conclusion was recorded by the
Court that reservations contemplated under Article 16(4) should not
G
exceed 50%. In paragraph 810 it was observed that in certain extra-
ordinary circumstances, some relaxation in this strict rule of 50% may
become imperative. Paragraphs 809 and 810 are to following effect:
“809. From the above discussion, the irresistible conclusion
that follows is that the reservations contemplated in clause (4) of
Article 16 should not exceed 50%. H
798 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 810. 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 far flung and remote areas the population inhabiting those areas
might, on account of their being out of the mainstream of national
life and in view of conditions peculiar to and characteristical to
B
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.”
124. Justice S. Ratnavel Pandian while delivering a separate
judgment has expressed his disagreement with the proposition of fixing
C the reservation for socially and educationally backward classes at 50%
as a maximum limit. In paragraph 243(9) following was laid down by
Justice Pandian:
“243(9) No maximum ceiling of reservation can be fixed under
Article 16(4) of the Constitution for reservation of appointments
D or posts in favour of any backward class of citizens “in the services
under the State”. The decisions fixing the percentage of reservation
only up to the maximum of 50% are unsustainable.”
125. Justice Thommen, Justice Kuldip Singh and Justice R.M.
Sahai took the view that reservation in all cases should remain below
E 50% of total number of seats. Paragraph 323(8) of Justice Thommen’s
opinion is as follows:
“323(8) Reservation in all cases must be confined to a minority of
available posts or seats so as not to unduly sacrifice merits. The
number of seats or posts reserved under Article 15 or Article 16
F must at all times remain well below 50% of the total number of
seats or posts.”
126. Justice Kuldip Singh also in paragraph 384(i) expressed his
opinion in accord with Justice R.M. Sahai which is as follows:
“384(i) that the reservations under Article 16(4) must remain below
G
50% and under no circumstance be permitted to go beyond 50%.
Any reservation beyond 50% is constitutionally invalid.”
127. Justice R.M. Sahai in paragraph 619(i) held that reservation
should in no case exceed 50%. Justice T.K. Thommen, Justice Kuldip
Singh and Justice R.M. Sahai delivered dissenting opinion.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 799
& ANR. [ASHOK BHUSHAN, J.]

128. Now, we come to the judgment delivered by Justice P.B. A
Sawant who delivered concurring opinion. Two paragraphs of the
judgment of Justice Sawant are relevant to notice. In paragraph 518
justice Sawant observed that there is no legal infirmity in keeping the
reservations under clause(4) alone or under clause (4) and clause (1) of
Article 16 together, exceeding 50%. However, validity of the extent of
B
excess of reservations over 50% would depend upon the facts and
circumstances of each case. In the same paragraph Justice Sawant,
however, observed that it would ordinarily be wise and nothing much
would be lost, if the intentions of the Framers of the Constitution and the
observations of Dr. Ambedkar, on the subject be kept in mind. Justice
Sawant obviously referred to speech of Dr. Ambedkar dated 30.11.1948 C
where Dr. Ambedkar has categorically stated that reservation under
Article 16(4) shall be confined to minority of seats. However, in paragraph
552 justice Sawant has recorded his answers and in answer to Question
No.4 following was stated:
“552........ D
Question 4:
Ordinarily, the reservations kept both under Article 16(1) and 16(4)
together should not exceed 50 per cent of the appointments in a
grade, cadre or service in any particular year. It is only for
extraordinary reasons that this percentage may be exceeded. E
However, every excess over 50 per cent will have to be justified
on valid grounds which grounds will have to be specifically made
out.”
129. The above opinion of Justice Sawant is completely in accord
with the opinion expressed by Justice B.P. Jeevan Reddy in paragraphs F
809 and 810. The opinion of Justice Sawant expressed in the above
paragraph is that ordinarily, the reservations under Article 16(1) and
16(4) should not exceed 50% and it is only in extra-ordinary
circumstances that this percentage may be exceeded which is also the
opinion expressed by Justice B.P. Jeevan Reddy. Applying the principle G
of Constitution Bench of this Court in Rajnarain Singh (supra), the
opinion embodies the greatest common measure of agreement between
the opinions expressed. Thus, the majority opinion, the ratio of judgment
of Indra Sawhney as expressed by the majority is one which is expressed
in paragraphs 809 and 810 of the judgment of Justice B.P. Jeevan Reddy.
The submission of Shri Mukul Rohtagi cannot be accepted that majority H
800 SUPREME COURT REPORTS [2021] 15 S.C.R.

A opinion of Indra Sawhney is that 50% can be breached. The majority
opinion as noted above is that normally reservation should not exceed
50% and it is only in extra-ordinary circumstances it can exceed 50%.
What can be the extra-ordinary circumstances have been indicated in
paragraph 810.
B 130. Alternatively if we again look to the opinion in all six judgments,
we notice :
(a) Justice B.P. Jeevan Reddy (for himself and three other
Judges) held in paragraph 809 that the reservation
contemplated in clause (4) of Article 16 should not exceed
C 50%.
(b) Justice Thommen, Justice Kuldip Singh and Justice Sahai
in their separate opinion held that reservation under Article
16(4) should not exceed 50%.
131. Thus greatest common measure of agreement in six separate
D 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
E
caution is to be exercised.
132. The above is the ratio of Indra Sawhney judgment.
133. We, thus, do not find any good ground to revisit Indra
Sawhney or to refer the same to a larger Bench on the above ground
F urged.
134. Now, we come to the second ground pressed by Shri Rohtagi
is that different Judges from 1993 till date have spoken in different voices
with regard to reservation under Article 15(4) and 16(4) which is a good
ground to refer Indra Sawhney to a larger Bench.
G 135. We may notice the Constitution Bench judgment of this Court
in M.R. Balaji and others vs. State of Mysore and others, AIR
1963 SC 649, in which this Court while considering Article 15(4) had
laid down that reservation under Article 15(4) ordinarily, speaking
generally and in a broad manner special provision should be less than
H 50%, how much less than 50% would depend upon the prevailing
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 801
& ANR. [ASHOK BHUSHAN, J.]

circumstances in each case. The Constitution Bench in the above case A
was considering the challenge to order passed by the State of Mysore
that 68% of the seats available for admission to the Engineering and
Medical Colleges and to other technical institutions were reserved and
only 32% remain available to the merit pool. The question about the
extent of the special provision which would be competent to State to
B
make under Article 15(4) was also examined by the Constitution Bench.
The Constitution Bench speaking through Justice P.B. Gajendra Gadkar
stated following in paragraph 34:
“34..........A special provision contemplated by Article 15(4) like
reservation of posts and appointments contemplated by Article
16(4) must be within reasonable limits. The interests of weaker C
sections of society which are a first charge on the States and the
Centre have to be adjusted with the interests of the community as
a whole. The adjustment of these competing claims is undoubtedly
a difficult matter, but if under the guise of making a special
provision, State reserves practically all the seats available in all D
the colleges, that clearly would be subverting the object of Article
15(4). In this matter again, we are reluctant to say definitely what
would be a proper provision to make. Speaking generally and in a
broad way, a special provision should be less than 50%; how much
less than 50% would depend upon the present prevailing
circumstances in each case.” E

136. The Constitution Bench also after noticing the judgment of
this Court in General Manager, Southern Railway, Personnel
Officer(Reservation), Southern Railway vs. Rangachari, AIR 1962
SC 36, observed that what is true in regard to Article 15(4) is equally
true in Article 16(4). Following observations were made in paragraph F
37:
“37. ….Therefore, what is true in regard to Article 15(4) is equally
true in regard to Article 16(4). There can be no doubt that the
Constitution-makers assumed, as they were entitled to, that while
making adequate reservation under Article 16(4), care would be G
taken not to provide for unreasonable, excessive or extravagant
reservation, for that would, by eliminating general competition in
a large field and by creating wide-spread dissatisfaction amongst
the employees, materially affect efficiency. Therefore, like the
special provision improperly made under Article 15(4), reservation H
802 SUPREME COURT REPORTS [2021] 15 S.C.R.

A made under Article 16(4) beyond the permissible and legitimate
limits would be liable to be challenged as a fraud on the
Constitution. …”
137. The reservation ought to be less than 50% was spoken in the
above Constitution Bench judgment.
B 138. The next Constitution Bench judgment which noted the
judgment in M.R. Balaji (supra) and applied the percentage of 50% on
the carry forward rule is T. Devadasan. The first judgment in which a
discordant note with regard to 50% limit of reservation was expressed is
the judgment of this Court in State of Kerala and another vs. N.M.
C Thomas and others, 1976 (2) SCC 310, In the above case the
Constitution Bench had occasion to examine Rule 13-AA of Kerala State
and Subordinate Services Rules, 1958 which empower the State to grant
exemption for a specific period to any member or member belonging to
Scheduled Castes and Scheduled Tribes from passing the test referred
to in Rule 13 and Rule 13-A. The State of Kerala granted exemption to
D member of SC and ST from passing of the test, N.M. Thomas, respondent
had filed writ petition in the High Court asking for declaration that the
Rule 13-AA as unconstitutional. The grievance of the respondent was
that by virtue of exemption granted to members of the SC they have
been promoted earlier than the respondent, although they had not passed
E the test. The High Court allowed the writ petition against which judgment
the State of Kerala had come up in appeal. The appeal was allowed and
Rule 13-AA was held to be valid. The Constitution Bench judgment of
the Court was delivered by Chief Justice, A.N. Ray with whom Justice
K.K. Mathew, Justice M.H. Beg, Justice V.R. Krishna Iyer and Justice
S. Murtaza Fazal Ali concurred by delivering separate opinions. Two
F Judges, namely, Justice H.R. Khanna and Justice A.C. Gupta delivered
dissenting opinion. With regard to extent of reservation upto 50% only
two Judges, namely, Justice Fazal Ali and Justice Krishna Iyer has
expressed the opinion. Justice Beg noticed the Constitution Bench
judgments of this Court in M.R. Balaji and T.Devadasan, which had
G held that more than 50% reservation for backward class would violate
the principle of reasonableness. No opinion of his own was expressed
by Justice Beg. Justice Fazal Ali also in his judgment had noted 50%
ceiling of reservation but observed that the above is only rule of caution
and does not exhaust all categories. In paragraph 191 Justice Fazal Ali
considered the question and following was laid down:
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 803
& ANR. [ASHOK BHUSHAN, J.]

“191. This means that the reservation should be within the A
permissible limits and should not be a cloak to fill all the posts
belonging to a particular class of citizens and thus violate Article
16(1) of the Constitution indirectly. At the same time clause (4) of
Article 16 does not fix any limit on the power of the Government
to make reservation. Since clause (4) is a part of Article 16 of the
B
Constitution it is manifest that the State cannot be allowed to
indulge in excessive reservation so as to defeat the policy contained
in Article 16(1). As to what would be a suitable reservation within
permissible limits will depend upon the facts and circumstances
of each case and no hard and fast rule can be laid down, nor can
this matter be reduced to a mathematical formula so as to be C
adhered to in all cases. Decided cases of this Court have no doubt
laid down that the percentage of reservation should not exceed
50 per cent. As I read the authorities, this is, however, a rule of
caution and does not exhaust all categories. Suppose for instance
a State has a large number of backward classes of citizens which
D
constitute 80 per cent of the population and the Government, in
order to give them proper representation, reserves 80 per cent of
the jobs for them, can it be said that the percentage of reservation
is bad and violates the permissible limits of clause (4) of Article
16? The answer must necessarily be in the negative. The dominant
object of this provision is to take steps to make inadequate E
representation adequate.”
139. Justice Krishna Iyer in paragraph 143 of the judgment
expressed his concurrence with the opinion of Justice Fazal Ali that
arithmetical limit of 50% in any one year set by some earlier rulings
cannot perhaps be pressed too far. Following observations were made F
in paragraph 143:
“143. ... I agree with my learned Brother Fazal Ali, J., in the view
that the arithmetical limit of 50 per cent in any one year set by
some earlier rulings cannot perhaps be pressed too far. Overall
representation in a department does not depend on recruitment in G
a particular year, but the total strength of a cadre. I agree with his
construction of Article 16(4) and his view about the “carry
forward” rule.
140. With regard to 50% reservation limit, above are only
observations made by two Hon’ble Judges in seven-Judge Constitution H
804 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Bench. It is true that Justice Fazal Ali expressed his discordant note
with the ceiling of 50% but the observations as noted above were not
the decision of the seven-Judge Constitution Bench judgment.
141. In T. Devadasn vs. Union of India and another, AIR
1964 SC 179, a Constitution Bench of this Court had occasion to examine
B the carry forward rule in a recruitment under the Union of India. This
Court had noticed M.R. Balaji and held that what was laid down in
M.R. Balaji would apply in the above case. Referring to M.R. Balaji
following was laid down in paragraph 16 to the following effect:
“16. The startling effect of the carry forward rule as
C modified in 1955 would be apparent if in the illustration which we
have taken there were in the third year 50 total vacancies instead
of 100. Out of these 50 vacancies 9 would be reserved for the
Scheduled Castes and Tribes, adding to that, the 36 carried forward
from the two previous years, we would have a total of 45 reserved
vacancies out of 50, that is, a percentage of 90. In the case before
D us 45 vacancies have actually been filled out of which 29 have
gone to members of the Scheduled Castes and Tribes on the basis
of reservation permitted by the carry forward rule. This comes to
about 64.4% of reservation. Such being the result of the operation
of the carry forward rule we must, on the basis of the decision
E in Balaji case [AIR 1963 SC 649] hold that the rule is bad. Indeed,
even in General Manager Southern Railway v.
Rangachari [(1962) 2 SCR 586] which is a case in which
reservation of vacancies to be filled by promotion was upheld by
this Court, Gajendragadkar, J., who delivered the majority judgment
observed:
F
“It is also true that the reservation which can be made
under Article 16(4) is intended merely to give adequate
representation to backward communities. It cannot be used
for creating monopolies or for unduly or illegitimately disturbing
the legitimate interests of other employees. In exercising the
G powers under Article 16(4) the problem of adequate
representation of the backward class of citizens must be fairly
and objectively considered and an attempt must always be made
to strike a reasonable balance between the claims of backward
classes and the claims of other employees as well as the
H important consideration of the efficiency of administration;….”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 805
& ANR. [ASHOK BHUSHAN, J.]

It is clear from both these decisions that the problem of A
giving adequate representation to members of backward classes
enjoined by Article 16(4) of the Constitution is not to be tackled
by framing a general rule without bearing in mind its repercussions
from year to year. What precise method should be adopted for
this purpose is a matter for the Government to consider. It is enough
B
for us to say that while any method can be evolved by the
Government it must strike “a reasonable balance between the
claims of the backward classes and claims of other employees”
as pointed out in Balaji case [AIR 1963 SC 649].”
142. In the above case Justice Subba Rao has expressed dissenting
opinion. Justice Subba Rao observed that what was held in M.R. Balaji C
cannot be applied in the case of reservation of appointment in the matter
of recruitment. Following observation was made by Justice Subba Rao
in paragraph 30:
“30. In the instant case, the State made a provision; adopting
the principle of “carry forward”. Instead of fixing a higher D
percentage in the second and third selections based upon the earlier
results, it directed that the vacancies reserved in one selection for
the said Castes and Tribes but not filled up by them but filled up
by other candidates, should be added to the quota fixed for the
said Castes and Tribes in the next selection and likewise in the E
succeeding selection. As the posts reserved in the first year for
the said Castes and Tribes were filled up by non-Scheduled Caste
and non-Scheduled Tribe applicants, the result was that in the
next selection the posts available to the latter was proportionately
reduced. This provision certainly caused hardship to the individuals
who applied for the second or the third selection, as the case may F
be, though the non-Scheduled Castes and non-Scheduled Tribes,
taken as one unit, were benefited in the earlier selection or
selections. This injustice to individuals, which is inherent in any
scheme of reservation cannot, in my view, make the provision for
reservation nonetheless a provision for reservation.” G
143. In Akhil Bharatiya Sochit Karamchari Sangh (Railway)
Represented by its Assistant General Secretary on behalf of the
Association vs. Union of India and others, (1981) 1 SCC 246,
Justice O. Chinnappa Reddy observed that there is no fixed ceiling to
reservation or preferential treatment to the Scheduled Castes and
H
806 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Scheduled Tribes though generally reservation may not be far in excess
of 50%. Following words were spoken in paragraph 135:
“135. There is no fixed ceiling to reservation or preferential
treatment in favour of the Scheduled Castes and Scheduled Tribes
though generally reservation may not be far in excess of fifty per
B cent. There is no rigidity about the fifty per cent rule which is only
a convenient guideline laid down by Judges.
144. In K.C. Vasanth Kumar and another vs. State of Karnata,
1985 (Supp) SCC 714, O. Chinnappa Reddy, J. after noticing the Balaji
observed that percentage of reservations is not a matter upon which a
C court may pronounce with no material at hand. Following observations
were made by Justice O. Chinnappa Reddy in paragraph 57:
“57. The Balaji [M.R. Balaji v. State of Mysore, AIR 1963 SC
649,Court then considered the question of the extent of the special
provision which the State would be competent to make under
Article 15(4). ……
D
We should think that that is a matter for experts in management
and administration. There might be posts or technical courses for
which only the best can be admitted and others might be posts
and technical courses for which a minimum qualification would
also serve. The percentage of reservations is not a matter upon
E which a court may pronounce with no material at hand. For a
court to say that reservations should not exceed 40 per cent 50
per cent or 60 per cent, would be arbitrary and the Constitution
does not permit us to be arbitrary. Though in the Balaji case [M.R.
Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1)
F SCR 439] , the Court thought that generally and in a broad way a
special provision should be less than 50 per cent, and how much
less than 50 per cent would depend upon the relevant prevailing
circumstances in each case, the Court confessed: “In this matter
again, we are reluctant to say definitely what would be a proper
provision to make.” All that the Court would finally say was that
G in the circumstances of the case before them, a reservation of 68
per cent was inconsistent with Article 15(4) of the Constitution.
We are not prepared to read Balaji [M.R. Balaji v. State of
Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439] as arbitrarily
laying down 50 per cent as the outer limit of reservation. ……
H (emphasis supplied)”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 807
& ANR. [ASHOK BHUSHAN, J.]

145. In the same judgment of K.C. Vasanth, Justice E.S. A
Venkataramiah has expressed a contrary opinion to one which was
expressed by Justice O. Chinnappa Reddy in paragraph 149. Justice
Venkataramiah held that 50% rule has not been unsettled by the majority
in N.M. Thomas. In paragraph 149 following was laid down:
“149. After carefully going through all the seven opinions in the B
above case, it is difficult to hold that the settled view of this Court
that the reservation under Article 15(4) or Article 16(4) could not
be more than 50% has been unsettled by a majority on the Bench
which decided this case.”
146. The reference of Judges, who spoke in different voices are
the judgments as noted above. It is relevant to notice that neither in C
N.M. Thomas nor in K C Basant case the decision of the Court was
to disapprove 50% ceiling as fixed by M.R. Balaji. It is although true
that Justice Fazal Ali, Justice O.Chinnappa Reddy and Justice Krishna
Iyer have expressed their doubt about the advisability of 50% rule.
Another judgment which has been referred to is the judgment of this D
Court in State of Punjab and Hira Lal and others, 1970(3) SCC
567, where K.S.Hegde, J. speaking for a three-Judge Bench had
observed that the question of reservation to be made is primarily matter
for the State to decide. However, no observation was made by Justice
Hegde in the above case regarding M.R. Balaji case.
E
147. The judgment of this Court in N.M. Thomas, Akhil
Bharatiya Karamchari Sangh and State of Punjab and even dissenting
judgment of Justice Krishna Iyer in Devadasan and Akhil Bharatiya
Kaamchari Sangh have been referred to and considered by nine-Judge
Constitution Bench of this Court in Indra Sawhney. In Indra Sawhney,
Justice B.P. Jeevan Reddy while considering the question No.6 noted F
M.R. Balaji, Devadasan, N.M. Thomas and concluded that reservation
contemplated in clause (4) of Article 16 should not exceed 50%. After
considering all the above cases which according to Shri Rohtagi are
discordant notes, a larger nine-Judge Constitution Bench having held
that the reservation contemplated in clause (4) of Article 16 should not
G
exceed 50% of earlier doubt raised by the Judges as noted above cannot
be relied any further. The larger Bench in Indra Sawhney has settled
the law after considering all earlier decisions of this Court as well as
reliance of opinion of few Judges as noted and as relied by Shri Rohtagi
is of no avail and cannot furnish any ground to refer judgment of Indra
Sawhney to a larger Bench. H
808 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 148. One more judgment delivered after Indra Sawhney has been
relied by Shri Rohtagi that is S.V. Joshi and others vs. State of
Karnataka and others, (2012) 7 SCC 41. Shri Rohtagi submits that
this Court in S.V. Joshi in paragraph 4 referring to M.Nagaraj vs.
Union of India, (2006) 8 SCC 212, held if a State wants to exceed
50% reservation, then it is required to base its decision on the quantifiable
B
data. In paragraph 4 following was laid down:
“4. Subsequent to the filing of the above writ petitions, Articles
15 and 16 of the Constitution have been amended vide the
Constitution (Ninety-third Amendment) Act, 2005, and the
Constitution (Eighty-first Amendment) Act, 2000, respectively,
C which Amendment Acts have been the subject-matter of
subsequent decisions of this Court in M. Nagaraj v. Union of
India (2006) 8 SCC 212, and Ashoka Kumar Thakur v. Union
of India [(2008) 6 SCC 1] in which, inter alia, it has been laid
down that if a State wants to exceed fifty per cent reservation,
D then it is required to base its decision on the quantifiable data. In
the present case, this exercise has not been done.”
149. The observation was made in paragraph 4, as noted above,
that the Constitution Bench in M. Nagaraj has laid down that if a State
wants to exceed 50% reservation, then it is required to base its decision
E on a quantifiable data, which is clear misreading of judgment of the
Constitution Bench in M. Nagaraj. In M. Nagaraj, the Constitution
Bench has not laid down any proposition to the effect that if a State
wants to exceed 50% reservation, then it is required to base its decision
on the quantifiable data. To the contrary the Constitution Bench of this
Court in M. Nagaraj has reiterated the numerical bench mark like 50%
F rule in Indra Sawhney’s case. Following observation was made by the
Constitution Bench in paragraphs 120 and 122:
“120......In addition to the above requirements this Court
in Indra Sawhney [1992 Supp (3) SCC 217] has evolved
numerical benchmarks like ceiling limit of 50% based on post-
G specific roster coupled with the concept of replacement to provide
immunity against the charge of discrimination.
122. We reiterate that the ceiling limit of 50%, the concept of
creamy layer and the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 809
& ANR. [ASHOK BHUSHAN, J.]

are all constitutional requirements without which the structure of A
equality of opportunity in Article 16 would collapse.”
150. The Constitution Bench judgment of this Court in Ashok
Kumar Thakur has also not laid down any proposition which has been
referred in paragraph 4 of S.V. Joshi. This Court’s judgment of three-
Judge Bench in S.V. Joshi case does not support the contention of Shri B
Rohtagi.
151. In view of the foregoing discussion, we do not find any
substance in the second ground of Shri Rohtagi that this Court’s judgment
of Indra Sawhney to be referred to a larger Bench.
152. The judgment of Indra Sawhney has been followed by this C
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; D
(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 anoter 2010 (7) SCC 202
E
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., F
2020(7) Scale 162, reiterated the principle as referred
and reiterated that outer limit is 50% as specified in Indra
Sawhney’s case.
153. We move to ground Nos.3 and 4 as formulated by Shri
Mukul Rohtagi to make a reference to the larger Bench. G
154. The Constitution, the paramount law of the country has given
to the Indian citizens the basic freedom and equality which are meant to
be lasting and permanent. The Constitution of India is the vehicle by
which the goals set out in it are to be achieved. The right from primitive
society upto the organised nations the most cherished right which all H
810 SUPREME COURT REPORTS [2021] 15 S.C.R.

A human beings sought was the right to equality. The Preamble of our
Constitution reflects a deep deliberations and precision in choosing ideal
and aspirations of people which shall guide all those who have to govern.
Equality of status and opportunity is one of the noble objectives of the
framers of the Constitution. The doctrine of equality before law is part
of rule of law which pervades the Indian Constitution. Justice Y.V.
B
Chandrachud in Smt. Indira Nehru Gandhi vs. Raj Narain, (1975)
Supp. SCC 1 has referred to equality of status and opportunity as forming
part of the basic structure of the Constitution. In paragraph 664 following
was observed:
“664. I consider it beyond the pale of reasonable controversy
C that if there be any unamendable features of the Constitution on
the score that they form a part of the basic structure of the
Constitution, they are that: (i) Indian sovereign democratic republic;
(ii) Equality of status and opportunity shall be secured to all its
citizens; (iii) The State shall have no religion of its own and all
D persons shall be equally entitled to freedom of conscience and the
right freely to profess, practise and propagate religion and that
(iv) the nation oil all be governed by a Government of laws, not of
men. These, in my opinion, are the pillars of our constitutional
philosophy, the pillars, therefore, of the basic structure of the
Constitution.”
E
155. Articles 15 and 16 of the Constitution which are facets of
right of equality were incorporated as fundamental rights to translate the
ideals and objectives of the Constitution and to give opportunities to the
backward class of the society so as to enable them to catch up those
who are ahead of them. Article 15(1) and Article 16(1) of the Constitution
F are the provisions engrafted to realise substantive equality where Articles
15(4) and 16(4) are to realise 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. Justice B.P. Jeevan Reddy in
Indra Sawhney in paragraph 641 has said that the equality has been
G single greatest craving of all human beings at all points of time. 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
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 811
& ANR. [ASHOK BHUSHAN, J.]

case. What was the objective of Article 10, 10(1) and 10(3) has been A
explained by Dr. Ambedkar which speech has been time and again
referred to remind us the objective of the above fundamental right.
156. Dr. Ambedkar referred to Article 10(1) as a generic principle.
Dr. Ambedkar observed that if the reservation is to be consistent on the
sub-clause (1) of Article 10 it must confine to the reservation of minority B
of seats. Following are the part of speech of Dr. B.R. Ambedkar in the
Constituent Assembly:
“ If honourable Members will bear these facts in mind—
the three principles, we had to reconcile,—they will see that no
better formula could be produced than the one that is embodied in C
sub-clause (3) of article 10 of the Constitution; they will find that
the view of those who believe and hold that there shall be equality
of opportunity, has been embodied in sub-clause (1) of Article 10.
It is a generic principle. At the same time, as I said, we had to
reconcile this formula with the demand made by certain
communities that the administration which has now—for historical D
reasons—been controlled by one community or a few communities,
that situation should disappear and that the others also must have
an opportunity of getting into the public services. Supposing, for
instance, we were to concede in full the demand of those
communities who have not been so far employed in the public E
services to the fullest extent, what would really happen is, we
shall be completely destroying the first proposition upon which
we are all agreed, namely, that there shall be an equality of
opportunity. Let me give an illustration. Supposing, for instance,
reservations were made for a community or a collection of
communities, the total of which came to something like 70 per F
cent. of the total posts under the State and only 30 per cent. are
retained as the unreserved. Could anybody say that the reservation
of 30 per cent. as open to general competition would be satisfactory
from the point of view of giving effect to the first principle, namely,
that there shall be equality of opportunity? It cannot be in my G
judgment. Therefore the seats to be reserved, if the reservation is
to be consistent with sub-clause (1) of Article 10, must be confined
to a minority of seats. It is then only that the first principle could
find its place in the Constitution and effective in operation.”

H
812 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 157. The above views of Dr. Ambedkar expressed in the
Constituent Assembly for balancing the draft Articles 10(1) and 10(3)
equivalent to Articles 16 and 16(4) have been referred to and relied by
this Court in Indra Sawhney as well as in other cases.
158. Shri Rohtagi submits that this Court in Balaji has held sub-
B clause (4) of Article 16 as exception to Article 16(1) which was the
premise for fixing 50%. In N.M. Thomas and Indra Sawhney now it
is held that Article 16 sub-clause (4) is not exception to Article 16(1), the
submission is that in view of the above holding in N.M. Thomas and
Indra Sawhney the ceiling of 50% has to go. It is true that seven-Judge
Constitution Bench in N.M. Thomas held that Article 16(4) is not an
C exception to Article 16(1) which was noticed in paragraph 713 of the
judgment of Indra Sawhney. Justice B.P. Jeevan Reddy in paragraph
733 said “At this stage, we see to clarify one particular aspect. Article
16(1) is a facet of Article 14, just as Article 14 permits reasonable
classification, so does Article 16(1)”. In paragraph 741 following was
D laid down:
“741. ....In our respectful opinion, the view taken by the majority
in Thomas [(1976) 2 SCC 310, 380] is the correct one. We too
believe that Article 16(1) does permit reasonable classification
for ensuring attainment of the equality of opportunity assured by
E it. For assuring equality of opportunity, it may well be necessary
in certain situations to treat unequally situated persons unequally.
Not doing so, would perpetuate and accentuate inequality. Article
16(4) is an instance of such classification, put in to place the matter
beyond controversy. The “backward class of citizens” are
classified as a separate category deserving a special treatment in
F the nature of reservation of appointments/posts in the services of
the State. Accordingly, we hold that clause (4) of Article 16 is not
exception to clause (1) of Article 16. It is an instance of
classification implicit in and permitted by clause (1)......”
159. As laid down by the Constitution Bench in Indra Sawhney,
G we proceed on the premise that 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.
160. In Balaji, the Constitution Bench did not base its decision
only on the observation that Article 15(4) is exception and proviso to
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 813
& ANR. [ASHOK BHUSHAN, J.]

Article 15(1). Article 15(4) was referred to as a special provision. In A
paragraph 34 of Balaji it is also laid down that special provision
contemplated by Article 15(4) like reservation of posts by Article 16(4)
must be within the reasonable limitation. We again quote the relevant
observation from paragraph 34:
“34. ...That is not to say that reservation should not be adopted; B
reservation should and must be adopted to advance the prospects
of the weaker sections of society, but in providing for special
measures in that behalf care should be taken not to exclude
admission to higher educational centres to deserving and qualified
candidates of other communities. A special provision contemplated
by Article 15(4) like reservation of posts and appointments C
contemplated by Article 16(4) must be within reasonable limits.
The interests of weaker sections of society which are a first charge
on the States and the Centre have to be adjusted with the interests
of the community as a whole. The adjustment of these competing
claims is undoubtedly a difficult matter, but if under the guise of D
making a special provision, a State reserves practically all the
seats available in all the colleges, that clearly would be subverting
the object of Article 15(4). In this matter again, we are reluctant
to say definitely what would be a proper provision to make.
Speaking generally and in a broad way, a special provision should
be less than 50%; how much less than 50% would depend upon E
the present prevailing circumstances in each case...”
161. Both Shri Mukul Rohtagi and Shri Kapil Sibal submits that
constitutional provisions contained in Articles 15 and 16 do not permit
laying down any percentage in measures to be taken under Articles
15(4) and 16(4). It is submitted that fixation of percentage of 50% cannot F
be said to be constitutional. We need to answer the question from where
does 50% rule come from?
162. The 50% rule spoken in Balaji and affirmed in Indra
Sawhneyis to fulfill the objective of equality as engrafted in Article 14 of
which Articles 15 and 16 are facets. The Indra Sawhney itself gives G
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. In paragraph 807
Justice Jeevan Reddy states: H
814 SUPREME COURT REPORTS [2021] 15 S.C.R.

A “807. We must, however, point out that clause (4) speaks of
adequate representation and not proportionate representation.
Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is
accepted only in Articles 330 and 332 of the Constitution and that
too for a limited period. These articles speak of reservation of
B
seats in Lok Sabha and the State legislatures in favour of Scheduled
Tribes and Scheduled Castes proportionate to their population,
but they are only temporary and special provisions. It is therefore
not possible to accept the theory of proportionate representation
though the proportion of population of backward classes to the
C total population would certainly be relevant. Just as every power
must be exercised reasonably and fairly, the power conferred by
clause (4) of Article 16 should also be exercised in a fair manner
and within reasonable limits — and what is more reasonable than
to say that reservation under clause (4) shall not exceed 50% of
the appointments or posts, barring certain extraordinary situations
D
as explained hereinafter. From this point of view, the 27%
reservation provided by the impugned Memorandums in favour
of backward classes is well within the reasonable limits. Together
with reservation in favour of Scheduled Castes and Scheduled
Tribes, it comes to a total of 49.5%. In this connection, reference
E may be had to the Full Bench decision of the Andhra Pradesh
High Court in V. Narayana Rao v. State of A.P. [AIR 1987 AP
53 : 1987 Lab IC 152 : (1986) 2 Andh LT 258] , striking down the
enhancement of reservation from 25% to 44% for OBCs. The
said enhancement had the effect of taking the total reservation
F under Article 16(4) to 65%.”
163. In paragraph 808, Justice Jeevan Reddy referred to speech
of Dr. Ambedkar where he said that the reservation should be confined
(to a minority of seats). The expression minority of seats”. When
translated into figure the expression less than 50% comes into operation.
G 164. To change the 50% limit is to have a society which is not
founded on equality but based on caste rule. The democracy is an essential
feature of our Constitution and part of our basic structure. If the
reservation goes above 50% limit which is a reasonable, it will be slippery
slope, the political pressure, make it hardly to reduce the same. Thus,
H answer to the question posed is that the percentage of 50% has been
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 815
& ANR. [ASHOK BHUSHAN, J.]

arrived at on the principle of reasonability and achieves equality as A
enshrined by Article 14 of which Articles 15 and 16 are facets.
165. We may notice one more submission of Shri Rohtagi in the
above context. Shri Rohtagi submits that the Constitution of India is a
living document, ideas cannot remain frozen, even the thinking of the
framers of the Constitution cannot remain frozen for time immemorial. B
Shri Rohtagi submits that due to change in need of the society the law
should change.
166. Justice J.M. Shalet and Justice K.N. Grover,JJ. Speaking in
His Holiness Kesavananda Bharati Sripadagalvaru vs. State of
Kerala and another, (1973) 4 SCC 225, laid down following in C
paragraph 482 and 634:
“482. These petitions which have been argued for a very
long time raise momentus issues of great constitutional importance.
Our Constitution is unique, apart from being the longest in the
world. It is meant for the second largest population with diverse D
people speaking different languages and professing varying
religions. It was chiselled and shaped by great political leaders
and legal luminaries, most of whom had taken an active part in
the struggle for freedom from the British yoke and who knew
what domination of a foreign rule meant in the way of deprivation
of basic freedoms and from the point of view of exploitation of E
the millions of Indians. The Constitution is an organic document
which must grow and it must take stock of the vast socio-economic
problems, particularly, of improving the lot of the common man
consistent with his dignity and the unity of the nation.
634. Every Constitution is expected to endure for a long F
time. Therefore, it must necessarily be elastic. It is not possible to
place the society in a straightjacket. The society grows, its
requirements change. The Constitution and the laws may have to
be changed to suit those needs. No single generation can bind the
course of the generation to come. Hence every Constitution, wisely G
drawn up, provides for its own amendment.”
167. Shri Rohtagi has placed reliance on the judgment of this Court
in K.S. Puttaswamy and another vs. Union of India and others,
2017(10) SCC 1, wherein in paragraph 476 following was laid down:
H
816 SUPREME COURT REPORTS [2021] 15 S.C.R.

A “476. However, the learned Attorney General has argued
in support of the eight-Judge Bench and the six-Judge Bench,
stating that the Framers of the Constitution expressly rejected the
right to privacy being made part of the fundamental rights chapter
of the Constitution. While he may be right, Constituent Assembly
Debates make interesting reading only to show us what exactly
B
the Framers had in mind when they framed the Constitution of
India. As will be pointed out later in this judgment, our judgments
expressly recognise that the Constitution governs the lives of 125
crore citizens of this country and must be interpreted to respond
to the changing needs of society at different points in time.”
C 168. Another judgment relied by Shri Rohtagi is in Supreme Court
Advocates-on-Record Association and others vs. Union of India,
1993(4) SCC 441, wherein in paragraph 16 following has been laid
down:
“16. The proposition that the provisions of the Constitution
D must be confined only to the interpretation which the Framers,
with the conditions and outlook of their time would have placed
upon them is not acceptable and is liable to be rejected for more
than one reason — firstly, some of the current issues could not
have been foreseen; secondly, others would not have been
E discussed and thirdly, still others may be left over as controversial
issues, i.e. termed as deferred issues with conflicting intentions.
Beyond these reasons, it is not easy or possible to decipher as to
what were the factors that influenced the mind of the Framers at
the time of framing the Constitution when it is juxtaposed to the
present time. The inevitable truth is that law is not static and
F immutable but ever increasingly dynamic and grows with the
ongoing passage of time.”
169. 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.
G 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.
170. The constitutional measures of providing reservation, giving
concessions and other benefits to backward classes including socially
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& ANR. [ASHOK BHUSHAN, J.]

and educationally backward class are all affirmative measures. We have A
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. The directive principles of the
B
State Policy cast onerous obligation on the States to promote welfare of
the people by securing and protecting as effectively as it may social
order in which social justice, economic and political shall inform all the
institutions of the national life. Providing reservation for advancement of
any socially and educationally backward class in public services is not
the only means and method for improving the welfare of backward class. C
The State ought to bring other measures including providing educational
facilities to the members of backward class free of cost, giving concession
in fee, providing opportunities for skill development to enable the
candidates from the backward class to be self- reliant.
171. We recall the observation made by Justice R.V. Raveendran D
in Ashoka Kumar Thakur vs. Union of India and others, 2008(6)
SCC 1, where His Lordship held that any provision for reservation is a
temporary crutch, such crutch by unnecessary prolonged use, should
not become a permanent liability. In words of Justice Raveendran
paragraph 666 is as follows:
E
“666. Caste has divided this country for ages. It has hampered
its growth. To have a casteless society will be realisation of a
noble dream. To start with, the effect of reservation may appear
to perpetuate caste. The immediate effect of caste-based
reservation has been rather unfortunate. In the pre-reservation
era people wanted to get rid of the backward tag—either social F
or economical. But post reservation, there is a tendency even
among those who are considered as “forward”, to seek the
“backward” tag, in the hope of enjoying the benefits of
reservations. When more and more people aspire for
“backwardness” instead of “forwardness” the country itself G
stagnates. Be that as it may. Reservation as an affirmative action
is required only for a limited period to bring forward the socially
and educationally backward classes by giving them a gentle
supportive push. But if there is no review after a reasonable period
and if reservation is continued, the country will become a caste
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818 SUPREME COURT REPORTS [2021] 15 S.C.R.

A divided society permanently. Instead of developing a united society
with diversity, we will end up as a fractured society forever
suspicious of each other. While affirmative discrimination is a road
to equality, care should be taken that the road does not become a
rut in which the vehicle of progress gets entrenched and stuck.
Any provision for reservation is a temporary crutch. Such crutch
B
by unnecessary prolonged use, should not become a permanent
liability. It is significant that the Constitution does not specifically
prescribe a casteless society nor tries to abolish caste. But by
barring discrimination in the name of caste and by providing for
affirmative action Constitution seeks to remove the difference in
C status on the basis of caste. When the differences in status among
castes are removed, all castes will become equal. That will be a
beginning for a casteless egalitarian society.”
172. We have no doubt that all Governments take measures to
improve the welfare of weaker sections of the society but looking to the
D increased requirement of providing education including higher education
to more and more sections of society other means and measures have to
be forged. In view of the privatisation and liberalisation of the economy
public employment is not sufficient to cater the needs of all. More avenues
for providing opportunities to members of the weaker sections of the
society and backward class to develop skills for employment not
E necessary the public service. The objectives engrafted in our Constituted
and ideals set by the Constitution for the society and the Governments
are still not achieved and have to be pursued. There can be no quarrel
that society changes, law changes, people changes but that does not
mean that something which is good and proven to be beneficial in
F maintaining equality in the society should also be changed in the name of
change alone.
173. In Ashoka Kumar Thakur vs. Union of India, (supra),
Justice Dalveer Bhandari has also laid down that the balance should be
struck to ensure that reservation would remain reasonable. We are of
G the considered opinion that the cap on percentage of reservation as has
been laid down by Constitution Bench in Indra Sawhney is with the
object of striking a balance between the rights under Article 15(1) and
15(4) as well as Articles 16(1) and 16(4). The cap on percentage is to
achieve principle of equality and with the object to strike a balance which
cannot be said to be arbitrary or unreasonable.
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DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 819
& ANR. [ASHOK BHUSHAN, J.]

174. The judgment of Indra Sawhney is being followed for more A
than a quarter century without there being any doubt raised in any of the
judgments about the 50%, the 50% rule has been repeatedly followed.
175. We may notice one more aspect in the above respect.
Granville Austin in “The Indian Constitution: Cornerstone of a
Nation” while discussing the topic “The judiciary and the social B
revolution” states:
“The members of the Constituent Assembly brought to the framing
of the Judicial provisions of the Constitution an idealism equalled
only by that shown towards the Fundamental Rights. Indeed, the
Judiciary was seen as an extension of the Rights, for it was the C
courts that would give the Rights force. The Judiciary was to be
an arm of the social revolution, upholding the equality that Indians
and longed for during colonial days, but had not gained-not simply
because the regime was colonial, and perforce repressive, but
largely because the British had feared that social change would
endanger their rule.” D

176. The Constitution enjoins a constitutional duty to interpret and
protect the Constitution. This Court is guardian of the Constitution.
177. We may also quote Justice Mathew, in Keshavananda
Bharati (Supra), where he reiterated that judicial function is both E
creation and application of law. The principle of Indra Sawhney is both
creation application of law. In paragraph, 1705, Justice Mathew says: -
“1705. The judicial function is, like legislation, both creation
and application of law. The judicial function is ordinarily determined
by the general norms both as to procedure and as to the contents
F
of the norm to be created, whereas legislation is usually determined
by the Constitution only in the former respect. But that is a
difference in degree only. From a dynamic point of view, the
individual norm created by the judicial decision is a stage in a
process beginning with the establishment of the first Constitution,
continued by legislation and customs, and leading to the judicial G
decisions. The Court not merely formulates already existing law
although it is generally asserted to be so. It does not only ‘seek’
and ‘find’ the law existing previous to its decision, it does not
merely pronounce the law which exists ready and finished prior
to its pronouncement. Both in establishing the presence of the
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820 SUPREME COURT REPORTS [2021] 15 S.C.R.

A conditions and in stipulating the sanction, the judicial decision has
a constitutive character. The law-creating function of the courts
is especially manifest when the judicial decision has the character
of a precedent, and that means when the judicial decision creates
a general norm. Where the courts are entitled not only to apply
pre-existing substantive law in their decisions, but also to create
B
new law for concrete cases, there is a comprehensible inclination
to give these judicial decisions the character of precedents. Within
such a legal system, courts are legislative organs in exactly the
same sense as the organ which is called the legislator in the
narrower and ordinary sense of the term…””
C 178. In All India Reporter Karamchari Sangh and others vs.
All India Reporter Limited and others, 1988 Supp SCC 472, a
three-Judge Bench speaking through Justice Venkataramiah held that
the decisions of the Supreme Court which is a Court of record, constitute
a source of law apart from being a binding precedent under Article 141.
D Following was laid down in paragraph 11:
“11. .... Article 141 of the Constitution provides that the
law declared by Supreme Court shall be binding on all courts within
the territory of India. Even apart from Article 141 of the Constitution
the decisions of the Supreme Court, which is a court of record,
constitute a source of law as they are the judicial precedents of
E the highest court of the land. ….”
179. This Court again in Nand Kishore vs. State of Punjab,
1995(6) SCC 614, laid down that under Article 141 law declared by
this Court is of a binding character and as commandful as the law made
by legislative body or authorized delegate of such body. In paragraph 17
F following was laid down:
“17. …Their Lordships’ decisions declare the existing law but do
not enact any fresh law”, is not in keeping with the plenary function
of the Supreme Court under Article 141 of the Constitution, for
the Court is not merely the interpreter of the law as existing but
much beyond that. The Court as a wing of the State is by itself a
G
source of law. The law is what the Court says it is. Patently the
High Court fell into an error in its appreciation of the role of this
Court.”
180. When the Constitution Bench in Indra Sawhney held that
50% is upper limit of reservation under Article 16(4), it is the law which
H is binding under Article 141 and to be implemented.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 821
& ANR. [ASHOK BHUSHAN, J.]

181. The submission of Shri Kapil Sibal that the judgment of Indra A
Sawhney is shackle to the legislature in enacting the law does not
commend us. When the law is laid down by this Court that reservation
ought not to exceed 50% except in extra-ordinary circumstances all
authorities including legislature and executive are bound by the said law.
There is no question of putting any shackle. It is the law which is binding
B
on all.
182. This Court has laid down in a large number of cases that
reservation in super-specialties and higher technical and in disciplines
like atomic research etc. are not to be given which is law developed in
the national interest. In paragraph 838, Indra Sawhney has noticed
certain posts where reservations are not conducive in public interest and C
the national interest. Following has been held in paragraph 838:
“838. While on Article 335, we are of the opinion that there
are certain services and positions where either on account of the
nature of duties attached to them or the level (in the hierarchy) at
which they obtain, merit as explained hereinabove, alone counts. D
In such situations, it may not be advisable to provide for
reservations. For example, technical posts in research and
development organisations/departments/ institutions, in specialities
and super-specialities in medicine, engineering and other such
courses in physical sciences and mathematics, in defence services
and in the establishments connected therewith. Similarly, in the E
case of posts at the higher echelons e.g., Professors (in Education),
Pilots in Indian Airlines and Air India, Scientists and Technicians
in nuclear and space application, provision for reservation would
not be advisable.”
182(a). If we accept the submission of the learned counsel for F
the respondent to the logical extent that since there is no indication in
Articles 15 and 16 certain posts cannot be reserved, no such exclusion
could have been made. The law as existing today is one which has been
laid down in Indra Sawhney in paragraph 838 which is a law spelt out
from the constitutional provisions including Article 15 and 16.
G
183. What has been laid down by the Constitution Bench in Indra
Sawhney in paragraphs 839, 840 and 859(8) is law declared by this
Court and is to be implemented also by all concerned. The Parliament
has passed the Central Educational Institutions Reservation and
Appointment Act, 2006 providing for reservation- 15% for SC, 7-1/2%,
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822 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 15%, 27% for other classes in Central Educational Institutions
(Reservation in Admission) Act, 2006. Section 4 provides that Act not to
apply in certain cases which is to the following effect:
“Section 4 of the Act specifically says that the provisions
of Section 3 shall (sic/not) apply to certain institutions. Section 4
B reads as under:
“4. Act not to apply in certain cases.—The provisions of
Section 3 of this Act shall not apply to—
(a) a Central Educational Institution established in the tribal
areas referred to in the Sixth Schedule to the Constitution;
C
(b) the institutions of excellence, research institutions,
institutions of national and strategic importance specified in the
Schedule to this Act:
Provided that the Central Government may, as and when
considered necessary, by notification in the Official Gazette, amend
D
the Schedule;
(c) a Minority Educational Institution as defined in this Act;
(d) a course or programme at high levels of specialisation,
including at the post-doctoral level, within any branch or study or
E faculty, which the Central Government may, in consultation with
the appropriate authority, specify.”
184. Exclusion of reservation in above Parliamentary enactment
clearly indicates that law declared by Indra Sawhney in paragraphs
839, 840 and 859 as noted above is being understood as a law and being
F implemented, this reinforces our view that ceiling limit of 50% for
reservation as approved by Indra Sawhney’s case is a law within the
meaning of Article 141 and is to be implemented by all concerned.
185. In view of the above discussion, ground Nos. 3 and 4 as
urged by Shri Mukul Rohtagi do not furnish any ground to review Indra
G Sawhney or to refer the said judgment to the larger Constitution Bench.
REASON NO. 5
186. Shri Rohtagi submits that Indra Sawhney judgment being
judgment on Article 16(4), its ratio cannot be applied with regard to
Article 15(4). Justice Jeevan Reddy before proceeding to answer the
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DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 823
& ANR. [ASHOK BHUSHAN, J.]

questions framed clearly observed that the debates of the Constituent A
Assembly on Article 16 and the decision of this Court on Articles 15 and
16 and few decisions of US Supreme Court are helpful. The observations
of the Court that decision of this Court on Article 16 and Article 15 are
helpful clearly indicate that principles which have been discerned for
interpreting Article 16 may also be relevant for interpretation of Article
B
15. Justice Jeevan Reddy has noted two early cases on Article 15
namely The State of Madras versus Champakam Dorairajan, AIR
1951 SC 226 and B.Venkataramana versus State of Tamil Nadu
and Another, AIR 1951 SC 229. Justice Jeevan Reddy in paragraph
757 has observed that although Balaji was not a case arising under
Article 16(4) but what is said about Article 15(4) came to be accepted C
as equally good and valid for the purposes of Article 16(4). Justice
Jeevan Reddy said in paragraph 757:-
“757. Though Balaji was not a case arising under Article 16(4),
what it said about Article 15(4) came to be accepted as equally
good and valid for the purpose of Article 16(4). The formulations D
enunciated with respect to Article 15(4) were, without question,
applied and adopted in cases arising under Article 16(4). It is,
therefore, necessary to notice precisely the formulations in Balaji
relevant in this behalf. ...
(underlined by us)” E
187. It was further held in paragraph 808 that clause (4) of Article
16 is a means of achieving the objective of equality and it is nothing but
reinstatement of principle of equality enshrined in Article 14. The relevant
observation by Justice Jeevan Reddy in paragraph 808 is as follows:
“808. It needs no emphasis to say that the principle aim of F
Article 14 and 16 is equality and equality of opportunity and that
Clause (4) of Article 16 is but a means of achieving the very
same objective. Clause (4) is a special provision - though not an
exception to Clause (1). Both the provisions have to be harmonised
keeping in mind the fact that both are but the restatements of the G
principle of equality enshrined in Article 14. The provision under
Article 16(4) -conceived in the interest of certain sections of society
- should be balanced against the guarantee of equality enshrined
in Clause (1) of Article 16 which is a guarantee held out to every
citizen and to the entire society. It is relevant to point out that Dr.
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824 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Ambedkar himself contemplated reservation being “confined to a
minority of seats” (See his speech in Constituent Assembly, set
out in para 28). No other member of the Constituent Assembly
suggested otherwise. It is, thus clear that reservation of a majority
of seats was never envisaged by the founding fathers. Nor are
we satisfied that the present context requires us to depart from
B
that concept.
(underlined by us)”
188. Clause (4) of Article 15 is also a special provision which is
nothing but reinstatement of the principles of equality enshrined in Article
C 14. The principles which have been laid down in paragraph 808 with
respect to Article 16(4) are clearly applicable with regard to Article
15(4) also. In the majority judgment of this Court in Indra Sawhney, the
Balaji principle i.e. the 50 percent rule has been approved and not
departed with. The 50 percent principle which was initially spoken of in
Balaji having been approved in Indra Sawhney. We failed to see as to
D how prepositions laid down by this Court in Indra Sawhney shall not be
applicable for Article 15. 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).
E 189. We thus do not find any substance in submissions of Mukul
Rohtagi that the judgment of this Court in Indra Sawhney need not be
applied in reference to Article 15.
REASON -6

F 190. Shri Rohtagi submits that in Indra Sawhney judgment, the
impact of Directive Principles of State Policy such as Article 39(b)(c)
and Article 46 have not been considered while interpreting Article 14,
16(1) and 16(4). The Directive Principles of State Policy enshrined in
Part-IV of the Constitution are fundamental in governance of the country.
The State while framing its policy, legislation, had to take measures to
G give effect to the Constitutional Objective as contained in Part-IV of the
Constitution. The Fundamental Rights are rights which the Constitution
guarantees to the Citizen whereas Part-IV of the Constitution is the
obligation of the State which it has to discharge for securing Constitutional
objective. In the most celebrated judgment of this Court i.e.
Keshavananda Bharati Sripadagalvaru and others versus State of
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& ANR. [ASHOK BHUSHAN, J.]

Kerala and another, (1973) 4 SCC 225, in several of the opinions, the A
Part-III and Part-IV of the Constitution has been dealt with. Chief
Justice S.M. Sikri,in paragraph 147 of the judgment, stated that: -
“147. It is impossible to equate the directive principles with
fundamental rights though it cannot be denied that they are very
important. But to say that the directive principles give a directive B
to take away fundamental rights in order to achieve what is
directed by the directive principles seems to me a contradiction in
terms.”
191. In the same judgment, Justice Hegde and Mukherjea
J.J, held that Fundamental Rights and the Directive Principles of State C
Policy constitute the conscience of our Constitution. Following was stated
in paragraph 712: -
“712. No one can deny the importance of the Directive Principles.
The Fundamental Rights and the Directive Principles constitute
the ‘conscience’ of our Constitution. The purpose of the D
Fundamental Rights is to create an egalitarian society, to free all
citizens from coercion or restriction by society and to make liberty
available for all. The purpose of the Directive Principles is to fix
certain social and economic goals for immediate attainment by
bringing about a non-violent social revolution. Through such a social
revolution the Constitution seeks to fulfil the basic needs of the E
common man and to change the structure of bur society. It aims
at making the Indian masses free in the positive sense.”
192. The Constitution Bench of this Court in Minerva Mills limited
and others versus Union of India and others, (1980) 3 SCC 625,
has also elaborately dealt both Fundamental Rights and Directive F
Principles of State Policy. The question which arose before the
Constitution bench in context of Fundamental Rights and Directive
Principles of State Policy was noticed by Justice Chandrachud, C.J.,
in paragraph 40 as:-
“40. The main controversy in these petitions centres round the G
question whether the directive principles of State policy contained
in Part IV can have primacy over the fundamental rights conferred
by Part III of the Constitution. That is the heart of the matter.
Every other consideration and all other contentions are in the nature
of by-products of that central theme of the case. The competing
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826 SUPREME COURT REPORTS [2021] 15 S.C.R.

A claims of parts III and IV constitute the pivotal point of the case
because, Article 31C as amended by section 4 of the 42nd
Amendment provides in terms that a law giving effect to any
directive principle cannot be challenged as void on the ground
that it violates the rights conferred by Article 14 or The 42nd
Amendment by its section 4 thus subordinates the fundamental
B
rights conferred by Articles 14 and 19 to the directive principles.”
193. It was held that both Part-III and Part-IV of the Constitution
are two kinds of State’s obligation i.e. negative and positive. The harmony
and balance between Fundamental Rights and Directive Principles of
State Policy is an essential feature of the Basic Structure of the
C Constitution. Justice Chandrachud elaborating the relation between
Part-III and Part-IV stated in paragraph 57: -
“57. This is not mere semantics. The edifice of our Constitution is
built upon the concepts crystallised in the Preamble. We resolved
to constitute ourselves into a Socialist State which carried with it
D the obligation to secure to our people justice-social, economic and
political. We, therefore, put part IV into our Constitution containing
directive principles of State policy which specify the socialistic
goal to be achieved. We promised to our people a democratic
polity which carries with it the obligation of securing to the people
E liberty of thought, expression, belief, faith and worship; equality
of status and of opportunity and the assurance that the dignity of
the individual will at all costs be preserved. We, therefore, put
Part, III in our Constitution conferring those rights on the people.
Those rights are not an end in themselves but are the means to an
end. The end is specified in Part IV. Therefore, the rights conferred
F by Art III are subject to reasonable restrictions and the Constitution
provides that enforcement of some of them may, in stated
uncommon circumstances, be suspended. But just as the rights
conferred by Part III would be without a radar and a compass if
they were not geared to an ideal, in the same manner the attainment
G of the ideals set out in Part IV would become a pretence for
tyranny if the price to be paid for achieving that ideal is human
freedoms. One of the faiths of our founding fathers was the purity
of means. Indeed, under our law, even a dacoit who has committed
a murder cannot be put to death in the exercise of right of self-
defence after he has made good his escape. So great is the
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DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 827
& ANR. [ASHOK BHUSHAN, J.]

insistence of civilised laws on the purity of means. The goals set A
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
B
of the basic structure of our Constitution.”
194. Article 38 of Directive Principles of State Policy oblige the
State to strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice social,
economic and political shall inform all the institutions of national life.
Article 15(4) and Article 16(4) of the Constitution are nothing but steps C
in promoting and giving effect to policy under Article 38 of the
Constitution. Justice Jeevan Reddy in his judgment of Indra Sawhney
has noted Article 38 and Article 46 of Part-IV of the Constitution. In
paragraph 647, Article 38 and 46 has been notice in following words: -
“647. The other provisions of the Constitution having a bearing on D
Article 16 are Articles 38, 46 and the set of articles in Part XVI.
Clause (1) of Article 38 obligates the State to “strive to promote
the welfare of the people by securing and protecting as effectively
as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life.” E
195. The criticism mounted by Mr. Rohtagi that Indra Sawhney
judgment does not consider the impact of Directive Principles of State
Policy while interpreting Article 16 is thus not correct. Further in paragraph
841, it has been held that there is no particular relevance of Article 38 in
context of Article 16(4). In paragraph 841, following has been F
observed: -
“841. We may add that we see no particular relevance of Article
38(2) in this context. Article 16(4) is also a measure a measure to
ensure equality of status besides equality of opportunity.”
196. Mr. Rohtagi has referred to Article 39(b) and Article 39(c) G
of the Constitution and has submitted that there is no consideration in
Indra Sawhney judgment. Article 39 of the Constitution enumerates
certain principles of policy to be followed by the State. Article 39 (b) and
39(c) which are relevant for the present case are as follows: -
“39. Certain principles of policy to be followed by the State:- H
828 SUPREME COURT REPORTS [2021] 15 S.C.R.

A (b) that the ownership and control of the material resources of
the community are so distributed as best to subserve the common
good; and
(c) that the operation of the economic system does not result in
the concentration of wealth and means of production to the
B common detriment;”
197. We fail to see that how the measures taken under Article
15(4) and 16(4) shall in any manner can be read to breach Directive
Principles of State Policy. Article 16(4) and 15(4) are also measures to
ensure equality of status besides the equality of opportunity.
C 198. We thus do not find any substance in the above submission
of Mr. Mukul Rohtagi.
Ground NO. 7
199. Shri Rohtagi submits that an Eleven-Judge Bench of this
D Court in T.M.A. Pai foundation and others versus State of Karnataka
and others, (2002) 8 SCC 481, has struck down the law laid down by
this Court in St. Stephen’s College case, (1992) 1 SCC 558 which had
held that aided minority educational institutions although entitled to
preferably admit their community candidate but intake should not be
more than 50 percent. Shri Rohtagi submits that St. Stephen’s College
E case has put a cap of 50 percent which was nothing but recognition of
Indra Sawhney Principle. Shri Rohtagi submits that the Eleven-Judge
Bench in T.M.A. Pai Foundation case has set aside the aforesaid cap
of 50 percent. Mr. Rohtagi relies on paragraph 151 of Kirpal,C.J.
and paragraph 338 by Rumapal, J. of the judgment, which is to
F the following effect: -
“151. The right of the aided minority institution to preferably admit
students of its community, when Article 29(2) was applicable, has
been clarified by this Court over a decade ago in the St. Stephen’s
College case. While upholding the procedure for admitting students,
this Court also held that aided minority educational institutions
G
were entitled to preferably admit their community candidates so
as to maintain the minority character of the institution, and that
the state may regulate the intake in this category with due regard
to the area that the institution was intended to serve, but that this
intake should not be more than 50% in any case. Thus, St.
H Stephen’s endeavoured to strike a balance between the two
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 829
& ANR. [ASHOK BHUSHAN, J.]

Articles. Though we accept the ratio of St. Stephen’s, which has A
held the field for over a decade, we have compelling reservations
in accepting the rigid percentage stipulated therein. As Article 29
and Article 30 apply not only to institutions of higher education but
also to schools, a ceiling of 50% would not be proper. It will be
more appropriate that depending upon the level of the institution,
B
whether it be a primary or secondary or high school or a college,
professional or otherwise, and on the population and educational
needs of the area in which the institution is to be located the state
properly balances the interests of all by providing for such a
percentage of students of the minority community to be admitted,
so as to adequately serve the interest of the community for which C
the institution was established.
388. I agree with the view as expressed by the Learned Chief
Justice that there is no question of fixing a percentage when the
need may be variable. I would only add that in fixing a percentage,
the Court in St. Stephens in fact “reserved” 50% of available D
seats in a minority institution for the general category ostensibly
under Article 29(2). pertains to the right of an individual and is not
a class right. It would therefore apply when an individual is denied
admission into any educational institution maintained by the State
or receiving aid from the State funds, solely on the basis of the
ground of religion, race, caste, language or any of them. It does E
not operate to create a class interest or right in the sense that any
educational institution has to set apart for non-minorities as a class
and without reference to any individual applicant, a fixed percentage
of available seats. Unless Articles 30(1) and 29(2) are allowed to
operate in their separate fields then what started with the voluntary F
‘sprinkling’ of outsiders, would become a major inundation and a
large chunk of the right of an aided minority institution to operate
for the benefit of the community it was set up to serve, would be
washed away.”
200. T.M.A. Pai foundation case was a judgment of this Court G
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. The 93rd Constitutional
Amendment Act, 2005, by which sub-clause (5) has been added in Article
H
830 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 15 excludes the minority educational institutions referred to in clause (1)
of Article 30. Sub-clause (5) of Article 15 is clear constitutional indication
that with regard to rights of minority regarding admission to educational
institutions, the minority educational institutions referred to in clause (1)
of Article 30 are completely excluded. What was laid down by this Court
in T.M.A. Pai foundation case, finds clear epoch in the 93 rd
B
Constitutional Amendment.
201. We may refer to a Three-Judge Bench judgment of this
Court 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.
C 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. Paragraphs 61
and 62 of the judgment are as follows: -
D “61. Article 15(5) is an enabling provision and it is for the respective
States either to enact a legislation or issue an executive instruction
providing for reservation except in the case of minority educational
institutions referred to in Article 30(1). The intention of the
Parliament is that the minority educational institution referred to
E in Article 30(1) is a separate category of institutions which needs
protection of Article 30(1) and viewed in that light we are of the
view that unaided minority school(s) needs special protection under
Article 30(1).Article 30(1) is not conditional as Article 19(1)(g).
In a sense, it is absolute as the Constitution framers thought that it
was the duty of the Government of the day to protect the minorities
F in the matter of preservation of culture, language and script via
establishment of educational institutions for religious and charitable
purposes [See: Article 26].
62. Reservations of 25% in such unaided minority schools result
in changing the character of the schools if right to establish and
G administer such schools flows from the right to conserve the
language, script or culture, which right is conferred on such unaided
minority schools. Thus, the 2009 Act including Section 12(1)(c)
violates the right conferred on such unaided minority schools under
Article 30(1). ”
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 831
& ANR. [ASHOK BHUSHAN, J.]

202. From the law as laid down in T.M.A. Pai foundation Case A
(supra)as well as Society for Un-aided Private Schools of Rajasthan
(supra), it is clear that there can be no reservation in unaided minority
schools referred in Article 30(1).
203. 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 B
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.
204. We thus are of the view that judgment of this Court in T.M.A. C
Pai Foundation case has no bearing on the ratio of Indra Sawhney’s
case.
Ground – 8
205. Shri Rohtagi relying on Constitutional 77th and 81st Amendment
Acts submits that these amendments have the effect of undoing in part D
the judgment of Indra Sawhney which necessitates revisiting of the
judgment. By the 77thConstitutional Amendment Act, 1995, sub-clause
(4A) was inserted in Article 16 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 E
granted. By virtue of sub-clause 4A of Article 16 now, the reservation in
promotion is permissible in favour 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. There can be no
case for revisiting the Indra Sawhney judgment on this ground. Now
coming to 81stConstitutional Amendment Act, 2000, by which sub-clause F
(4B) was inserted in Article 16. 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 G
such class of 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. Article (4B) is for any reference is quoted as below: -
“16(4B). Nothing in this article shall prevent the State from
considering any unfilled vacancies of a year which are reserved
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832 SUPREME COURT REPORTS [2021] 15 S.C.R.

A for being filled up in that year in accordance with any provision
for reservation made under clause (4) or clause (4A) as a separate
class of vacancies to be filled up in any succeeding year or years
and such class of vacancies shall not be considered together with
the vacancies of the year in which they are being filled up for
determining the ceiling of fifty per cent reservation on total number
B
of vacancies of that year.”
206. The above Constitutional Amendment makes it very clear
that ceiling of 50 percent “has now received Constitutional recognition.”
Ceiling of 50 percent is ceiling which was approved by this Court in
Indra Sawhney’s case, thus, the Constitutional Amendment in fact
C recognize the 50 percent ceiling which was approved in Indra Sawhney’s
case and on the basis of above Constitutional Amendment, no case has
been made out to revisit Indra Sawhney.
Ground-9

D 207. Shri Rohtagi submits that judgment of Indra held that the
States cannot identify the backward classes solely on the basis of
economic criteria as Indra Sawhney has set aside the O.M. dated
13.08.1990 which provided 10 percent reservation to economically weaker
section. The submission of Shri Rohtagi is that by 103rdConstitutional
Amendment, Parliament has inserted Article 15(6) and 16(6) whereby
E 10 percent reservation is granted to economically weaker section.
208. It is submitted that in view of the 10 percent reservation as
mandated by 103rdConstitutional amendment, 50 percent reservation as
laid down by Indra Sawhney is breached. Shri Rohtagi has further
submitted that the issue pertaining to 103rdConstitutional Amendment
F has been referred to a larger Bench in W.P. (Civil) No. 55 of 2019,
Janhit Abhiyan versus Union of India. In view of above,We refrain
ourselves from making any observation regarding effect and consequence
of 103rd Constitutional Amendment.
Ground– 10
G
209. Shri Rohtagi submits that in paragraph 810 of judgment of
Indra Sawhney, certain extraordinary circumstances have been referred
to which cannot be said to be cast in stone. The extra-ordinary
circumstances provided in paragraph 810 i.e. of far-flung and remote
area cannot be cast in stone and forever unchanging. He submits that
H the same was given only by way of example and cannot be considered
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 833
& ANR. [ASHOK BHUSHAN, J.]

exhaustive. Morever, it is geographical test which may not apply in every A
State. In paragraph 810 of Indra Sawhney, Justice Jeevan Reddy
provided: -
“810. 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 B
far-flung 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.” C

210. We fully endorse the submission of Shri Rohtagi that
extraordinary situations indicated in paragraph 810 were only illustrative
and cannot be said to be exhaustive. We however do not agree with Mr.
Rohtagi that paragraph 810 provided only a geographical test. The use
of expression “on being out of the main stream of national life”, is a D
social test, which also needs to be fulfilled for a case to be covered by
exception.
211. We may refer to a Three-Judge Bench judgment of this Court
in Union of India and others versus Rakesh Kumar and others,(2010)
4 SCC 50, this Court had occasion to consider the provisions of Fifth E
Schedule of the Constitution. Article 243B and provisions of Part-IX of
the Constitution inserted by 73rdConstitutional Amendment Act, 1992.
Reservation of seats was contemplated in the statutory provisions. The
judgment of Indra Sawhney especially paragraph 809 and 810 were
also noted and extracted by this Court. This Court noted that even the F
judgment of Indra Sawhney did recognize the need for exception
treatment in such circumstances. In paragraph 44, this Court held that
the case of Panchayats in Scheduled Areas is a fit case that warrant
exceptional treatment with regard to reservation and the rationale of
upper ceiling of 50 percent for reservation in higher education and public
employment can be readily extended to the domain of vertical G
representation at the Panchayat level in the Scheduled Area. Paragraphs
43 and 44 are extracted below: -
“43. For the sake of argument, even if an analogy between Article
243-D and Article 16(4) was viable, a close reading of the Indra
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834 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 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. This is evident from the following words (at
Paras. 809, 810):
B “809. From the above discussion, the irresistible conclusion
that follows is that the reservations contemplated in Clause (4)
of Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put out
of consideration certain extraordinary situations inherent in the
C great diversity of this country and the people. It might happen
that in far-flung 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.
D 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
E 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
F pragmatic balance between the affirmative action measures and
considerations of merit.”
212. This Court carved out one more exceptional circumstance
which may fit in extraordinary situations as contemplated by paragraph
810 in the Indra Sawhney’s case. We may also notice that the
G Constitution Bench of this Court in K. Krishna Murthy and others
versus Union of India and another, (2010) 7 SCC 202. In paragraph
82(iv) 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
H Area. Paragraph 82(iv) is as follows: -
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 835
& ANR. [ASHOK BHUSHAN, J.]

“82.(iv) The upper ceiling of 50% vertical reservations in favour A
of SCs/STs/OBCs should not be breached in the context of local
self-government. Exceptions can only be made in order to
safeguard the interests of the Scheduled Tribes in the matter of
their representation in panchayats located in the Scheduled Areas.”
213. The judgment of the Constitution Bench in the above case B
had approved the Three-Judge Bench judgment of this Court in Union
of India and others Rakesh Kumar (supra) in paragraph 67, which is
to the following effect: -
“67. In the recent decision reported as Union of India v. Rakesh
Kumar, (2010) 4 SCC 50, this Court has explained why it may be C
necessary to provide reservations in favour of Scheduled Tribes
that exceed 50% of the seats in panchayats located in Scheduled
Areas. However, such exceptional considerations cannot be
invoked when we are examining the quantum of reservations in
favour of backward classes for the purpose of local bodies located
in general areas. In such circumstances, the vertical reservations D
in favour of SC/ST/OBCs cannot exceed the upper limit of 50%
when taken together. It is obvious that in order to adhere to this
upper ceiling, some of the States may have to modify their
legislations so as to reduce the quantum of the existing quotas in
favour of OBCs.” E
214. We thus are of the view that extraordinary situations indicated
in paragraph 810 are only illustrative and not exhaustive but paragraph
810 gives an indication as to which may fit in extra ordinary situation.
215. In view of foregoing discussions, we do not find any substance
in grounds raised by Shri Rohtagi for re-visiting the judgment of Indra F
Sawhney and referring the judgment of Indra Sawhney to a larger
Bench.
The judgment of Indra Sawhney has been repeatedly followed
by this Court and has received approval by at least four Constitution
Benches of this Court as noted above. We also follow and reiterate the G
prepositions as laid down by this Court in Indra Sawhney in paragraphs
809 and 810. We further observe that ratio of judgment of Indra
Sawhney is fully applicable in context of Article 15 of the Constitution.
(8)Principle of Stare Decisis
H
836 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 216. The seven-Judge Constitution Bench judgment in Keshav
Mills [Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 has
unanimously held that before reviewing and revising its earlier decision
the Court must itself satisfy whether it is necessary to do so in the interest
of public good or for any other compelling reason and the Court must
endeavour to maintain a certainty and continuity in the interpretation of
B
the law in the country.
217. In Jarnail Singh and others vs. Lachhmi Narain Gupta
and others, 2018(10) SCC 396, the prayer to refer the Constitution
Bench judgment in M.Nagaraj (supra) was rejected by the Constitution
Bench relying on the law as laid down in Keshav Mills’ case. In
C paragraph 9 following has been laid down:
“9. Since we are asked to revisit a unanimous Constitution
Bench judgment, it is important to bear in mind the admonition of
the Constitution Bench judgment in Keshav Mills [Keshav Mills
Co. Ltd. v. CIT, (1965) 2 SCR 908 : AIR 1965 SC 1636] . This
D Court said: (SCR pp. 921-22 : AIR p. 1644, para 23)
“23. … [I]n reviewing and revising its earlier decision [Ed.:
The reference is to New Jehangir Vakil Mills Ltd. v. CIT,
AIR 1959 SC 1177 and Petlad Turkey Red Dye Works Co.
Ltd. v. CIT, 1963 Supp (1) SCR 871, this Court should ask itself
E whether in the interests of the public good or for any other
valid and compulsive reasons, it is necessary that the earlier
decision should be revised. When this Court decides questions
of law, its decisions are, under Article 141, binding on all courts
within the territory of India, and so, it must be the constant
F endeavour and concern of this Court to introduce and maintain
an element of certainty and continuity in the interpretation of
law in the country. Frequent exercise by this Court of its power
to review its earlier decisions on the ground that the view
pressed before it later appears to the Court to be more
reasonable, may incidentally tend to make law uncertain and
G introduce confusion which must be consistently avoided. That
is not to say that if on a subsequent occasion, the Court is
satisfied that its earlier decision was clearly erroneous, it should
hesitate to correct the error; but before a previous decision is
pronounced to be plainly erroneous, the Court must be satisfied
H with a fair amount of unanimity amongst its members that a
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 837
& ANR. [ASHOK BHUSHAN, J.]

revision of the said view is fully justified. It is not possible or A
desirable, and in any case it would be inexpedient to lay down
any principles which should govern the approach of the Court
in dealing with the question of reviewing and revising its earlier
decisions. It would always depend upon several relevant
considerations: — What is the nature of the infirmity or error
B
on which a plea for a review and revision of the earlier view is
based? On the earlier occasion, did some patent aspects of the
question remain unnoticed, or was the attention of the Court
not drawn to any relevant and material statutory provision, or
was any previous decision of this Court bearing on the point
not noticed? Is the Court hearing such plea fairly unanimous C
that there is such an error in the earlier view? What would be
the impact of the error on the general administration of law or
on public good? Has the earlier decision been followed on
subsequent occasions either by this Court or by the High
Courts? And, would the reversal of the earlier decision lead to
D
public inconvenience, hardship or mischief? These and other
relevant considerations must be carefully borne in mind
whenever this Court is called upon to exercise its jurisdiction
to review and revise its earlier decisions. These considerations
become still more significant when the earlier decision happens
to be a unanimous decision of a Bench of five learned Judges E
of this Court.”
218. The principle of stare decisis also commends us not to
accept the submissions of Shri Rohtagi. The Constitution Bench of this
Court in State of Gujarat versus Mirzapur, Moti Kureshi Kassab Jamat
and others, (2005) 8 SCC 534, explaining the principle of Stare F
decisis laid down following in paragraphs 111 and 118:-
“111. Stare decisis is a Latin phrase which means “stand
by decided cases; to uphold precedents; to maintain former
adjudication”. This principle is expressed in the maxim “stare
decisis et non quieta movere” which means to stand by decisions G
and not to disturb what is settled. This was aptly put by Lord
Coke in his classic English version as “Those things which have
been so often adjudged ought to rest in peace”. However,
according to Justice Frankfurter, the doctrine of stare decisis is
not “an imprisonment of reason” (Advanced Law Lexicon, P.
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838 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Ramanatha Aiyer, 3rd Edn. 2005, Vol.4, P.4456). The underlying
logic of the doctrine is to maintain consistency and avoid
uncertainty. The guiding philosophy is that a view which has held
the field for a long time should not be disturbed only because
another view is possible.
B 118. The doctrine of stare decisis is generally to be adhered
to, because well-settled principles of law founded on a series of
authoritative pronouncements ought to be followed. Yet, the
demands of the changed facts and circumstances, dictated by
forceful factors supported by logic, amply justify the need for a
fresh look.”
C
219. The Constitution Bench in Indra Sawhney speaking through
Justice Jeevan Reddy has held that the relevance and significance of
the principle of stare decisis have to be kept in mind. It was reiterated
that in law certainty, consistency and continuity are highly desirable
features. Following are the exact words in paragraph 683:-
D
“683... Though, we are sitting in a larger Bench, we have kept in
mind the relevance and significance of the principle of Stare decisis.
We are conscious of the fact that in law certainty, consistency
and continuity are highly desirable features. Where a decision
has stood the test of time and has never been doubted, we have
E respected it unless, of course, there are compelling and strong
reasons to depart from it. Where, however, such uniformity is not
found, we have tried to answer the question on principle keeping
in mind the scheme and goal of our Constitution and the material
placed before us.”
F 220. What was said by Constitution Bench in Indra Sawhney
clearly binds us. Judgment of Indra Sawhney has stood the test of time
and has never been doubted. On the clear principle of stare decisis,
judgment of Indra Sawhney neither need to be revisited nor referred to
larger bench of this Court.
G 221. The principle laid down in Keshav Mills when applied in
the facts of the present case, it is crystal clear that no case is made out
to refer the case of Indra Sawhney to a larger Bench.
(9)Whether Gaikwad Commission Report has made out a case
of extra-ordinary situation for grant of separate reservation
H to Maratha community exceeding 50% limit ?
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 839
& ANR. [ASHOK BHUSHAN, J.]

222. We have noticed above that majority judgment in Indra A
Sawhney has laid down that reservation shall not exceed 50% as a rule.
In the majority opinion, however, it was held that looking to the diversity
of the country there may be some extra-ordinary situations where
reservation in exceptional cases is made exceeding 50% limit. In this
respect, We may again refer to paragraphs 809 and 810 of the judgment
B
of Indra Sawhney by which the above proposition of law was laid down.
Paragraphs 809 and 810 are to the following effect:
“809. From the above discussion, the irresistible conclusion
that follows is that the reservations contemplated in clause (4) of
Article 16 should not exceed 50%.
C
810. 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 far flung and remote areas the population inhabiting those
areas might, on account of their being out of the mainstream of
national life and in view of conditions peculiar to and characteristical D
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.”
223. The second term of reference to the State Backward Classes
Commission included a specific reference, i.e., “to define exceptional E
circumstances and/or extra-ordinary situations to be applied for the benefit
of reservation in the present context”. The Gaikwad Commission has
separately and elaborately considered the above term of reference. A
separate Chapter, Chapter-X has been devoted in the Commission’s
Report. The heading of the Chapter-X is “EXCEPTIONAL F
CIRCUMSTANCES AND/OR EXTRA ORDINARY
SITUATIONS”.
224. We have already noticed the submission of Shri Mukul
Rohtagi with reference to exceptional circumstances while considering
the Ground No.10 as emphasized by him for referring the case to a G
larger Bench. We have observed that the exceptional circumstances as
indicated in paragraph 810 of Indra Sawhney were not exhaustive but
illustrative. The Constitution Bench, however, has given indication of
what could be the extra-ordinary circumstances for exceeding the limit
of 50%. The Commission has noticed the majority opinion in Indra
H
840 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Sawhney. We may notice paragraph 234-Chapter X of the Report which
is to the following effect:
“234. The Constitutional provisions relating to the reservations,
either under Article 15 or Article 16 of the Constitution do not
prescribe percentage of reservation to be provided to each of the
B backward classes i.e. Scheduled Castes, Scheduled Tribes and
Backward Classes. However, reservations to be provided to the
Scheduled Castes and Scheduled Tribes has already been provided
by the Government of India, i.e. 15% Scheduled Castes and 7.5%
for Scheduled Tribes. Excluding that 22.5% reservations, the
existing Bus provisions for reservation for Backward Classes is
C 27%. Though originally Article 15 and Article 16 of the 997
Constitution did not specify the percentage of the reservation for
different classes, the amended provisions of Article 16(4A) and
(4B) specify that the State Government is not prevented from
considering any unfilled vacancies of a year which are reserved
D for being filled up in that year in accordance with any provision
for reservation made under Article 16(4) or (4A) as a separate
class of vacancies to be filled up in any succeeding year or years
and such class of vacancies shall not be considered together with
the vacancies of the year in which they are being filled up for
determining the ceiling of 50% reservation on total number of
E vacancies of that year. In Indra Sawhney’s case (supra), the
Honourable the Supreme Court for the first time, by majority,
specified a ceiling for total reservation of 50%. The Honourable
the Supreme Court considered this issue while answering question
Nos. 6(a), 6(b) and 6(c) formulated by it in the Judgment. The
F questoins are produced herein under:-
“6(A) Whether the 50% rule enunciated in Balaji a binding rule or
only a rule of caution or rule of prudence?
6(b) Whether the 50% rule, if any, is confined to reservations
made under Clause (4) of Article 16 or whether it takes in
G all types of reservations that can be provided under Article
16?
6(c) Further while applying 50% rule, if any, whether an year
should be taken as a unit or whether the total strength of
the cadre should be looked to?”
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 841
& ANR. [ASHOK BHUSHAN, J.]

The Honourable the Supreme Court in para 94A in answered the A
questions Indra Sawhney’s case formulated by it stating that
reservation contemplated in clause (4) of Article 16 of the
Constitution shall not exceed 50%. In the same para the
Honourable the Supreme Court has ruled that some relaxation in
this TIRNITURE DIVIST strict rule may become imperative with
B
a caution. “In doing so extreme caution is to be exercised and a
special case is to be made out”. The relevant passage from para
94A (of AIR) the judgment of the Honourable the Supreme Court
in Indra Sawhney’s case majority view is reproduced and that
runs as under:
“While 50% shall be the rule, it is necessary not to put out of C
consideration certain extraordinary situations inherent in the great
diversity of this country and the people. It might happen that in far
flung and remote areas the population inhabiting those areas might,
on account of their being out of the main stream of national life
and in view of conditions peculiar to and characteristical to them, D
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.”
225. After noticing the above proposition of law the Commission
proceeded to deal with the subject. In paragraph 234 the Commission E
has noted the Constitution Bench judgment in M. Nagaraj & Ors. vs.
Union of India & Ors. (supra) observing that this Court has again
considered the aspect of ceiling of 50% reservation. The Commission,
however, proceeded with an assumption that in Nagaraj this Court has
ruled that for relaxation, i.e., 50%, there should be quantifiable and
contemporary data. We may notice the exact words of the Commission F
in paragraph 234 which is to the following effect:
“The Honourable the Supreme Court has again considered this
aspect of ceiling of 50% reservation in its next decision in M.
Nagaraj & Ors. v. Union of India & Ors. Reported in (2006)
8 SCC 212, wherein the Honourable the Supreme Court G
considered the validity of inserted clauses (4A) and (4B) by way
of amendment to Article 16 of the Constitution. However, in
Nagaraj, the Honourable the Supreme Court has ruled that for
the relaxation i.e. a ceiling of 50% there should be quantifiable
and contemporary data (Emphasis supplied).” H
842 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 226. The above view has again been reiterated by the Commission
n paragraph 235 to the following effect:
“235.......However, it is seen from Nagaraj that ceiling of
50% reservation may be exceeded by showing quantifiable
contemporary data relating to backwardness as required by Clause
B (4) of Article 15 and Clause (4) of Article 16 of the Constitution.”
227. From the above, 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
C 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) which was inserted by the above Amendment provides:
D
“Article 16(4A). Nothing in this Article shall prevent the
State from making any provision for reservation in matters of
promotion, with consequential seniority, to any class or classes of
posts in the services under the State in favour of the Scheduled
Castes and the Scheduled Tribes which, in the opinion of the State,
E are not adequately represented in the services under the State.”
228. The Constitution Bench proceeded to consider the submission
raised by the petitioner challenging the constitutional validity of the
constitutional provision. The Constitution Bench in Nagaraj has noticed
the maximum limit of reservation in paragraphs 55 to 59. The Constitution
F 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. Paragraph 58
of the Constitution Bench judgment in Nagaraj is as follows:
“58. However, in Indra Sawhney [1992 Supp (3) SCC
217 the majority held that the rule of 50% laid down in Balaji [AIR
G 1963 SC 649] was a binding rule and not a mere rule of prudence.”
229. In paragraph 107, the Constitution Bench observed:
“107....If the State has quantifiable data to show
backwardness and inadequacy then the State can make
reservations in promotions keeping in mind maintenance of
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 843
& ANR. [ASHOK BHUSHAN, J.]

efficiency which is held to be a constitutional limitation on the A
discretion of the State in making reservation as indicated by Article
335.....”
230. The Constitution Bench noted its conclusion in paragraphs
121, 122 and 123. In paragraph 123 following has been laid down:
“123. However, in this case, as stated above, the main issue B
concerns the “extent of reservation”. In this regard the State
concerned will have to show in each case the existence of the
compelling reasons, namely, backwardness, inadequacy of
representation and overall administrative efficiency before making
provision for reservation. As stated above, the impugned provision C
is an enabling provision. The State is not bound to make reservation
for SCs/STs in matters of promotions. However, if they wish to
exercise their discretion and make such provision, the State has
to collect quantifiable data showing backwardness of the class
and inadequacy of representation of that class in public
employment in addition to compliance with Article 335. It is made D
clear that even if the State has compelling reasons, as stated above,
the State will have to see that its reservation provision does not
lead to excessiveness so as to breach the ceiling limit of 50% or
obliterate the creamy layer or extend the reservation indefinitely.”
231. The Constitution Bench in paragraph 123 held that provision E
of Article 16(4A) is an enabling provision and State is not bound to make
reservation for Scheduled Castes and Scheduled Tribes in the matters
of promotion and however, if they wish to exercise their discretion and
make such provision, the State has to collect quantifiable data showing
backwardness of the class and inadequacy of representation. F
232. The above observation regarding quantifiable data was in
relation to enabling power of the State to grant reservation in promotion
to the Scheduled Caste and Scheduled Tribes. It is further relevant to
notice that in the last sentence of paragraph 123 it is stated: “It is made
clear that even if the State has compelling reasons, as stated above, the G
State will have to see that its reservation provision does not lead to
excessiveness so as to breach the ceiling limit of 50% or obliterate the
creamy layer or extend the reservation indefinitely”.
233. The Constitution Bench, thus, in the above case clearly laid
down that even reservation for promotion, ceiling of 50% limit cannot be H
844 SUPREME COURT REPORTS [2021] 15 S.C.R.

A breached. The Commission has completely erred in understanding the
ratio of the judgment, when the Commission took the view that on the
quantifiable data ceiling of 50% can be breached. There is no such ratio
laid down by this Court in M. Nagaraj. Hence, the very basis of the
Commission to proceed to examine quantifiable data for exceeding the
limit of 50% is unfounded.
B
234. Paragraph 236 of the Report of the Commission contains a
heading “QUANTIFIABLE DATA”. It is useful to extract the entire
paragraph 236 which is to the following effect:
“QUANTIFIABLE DATA:
C
236. As per the Census of the year 2011 population of
Scheduled Castes and Scheduled Tribes in the State of
Maharashtra is 11,81% and 9.35% respectively. The percentage
of Backward Classes, Maratha and Kunbi, have not been found
to have been specified in the Census of the year 2011. On the
D instructions of the Government of Maharashtra, the Gokhale
Institute of Politics and Economics, Pune, conducted Socio-
Economic Caste Census. It was the survey of rural population in
the State of Maharashtra. On the detailed survey the Gokhale
Institute of Politics and Economics recorded the findings on specific
E percentage of the Maratha community with Kunbi community as
35.7%. Percentage of all the reserved Backward Classes to be
48.6%. The percentage of other Classes or the population, who
have not disclosed their castes, is shown to be 15.7%, From this
survey report though it relates to the rural area, total percentage
of the exiting Backward Classes, Maratha and Kunbi, who claim
F to be backward, comes to 48.6% plus 35.7% equivalent to 84.3%
of the total population. There is no dispute that large population of
the Maratha and Kunbi castes as well as existing Backward
Classes are inhabitants of the rural areas. 48.6% population of
the existing reserved category including Scheduled Castes,
G Scheduled Tribes and all Backward Classes have been already
identified as socially and educationally backward. The Maratha
caste has been identified socially, educationally and economically
backward by this Commission. So as total 84.3% population can
be said to be of backward classes.”

H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 845
& ANR. [ASHOK BHUSHAN, J.]

235. Regarding the above noted quantifiable data, the Commission A
has recorded its reasons for reservation under Article 15(4) and 16(4) in
paragraph 259. We extract here paragraph 259 to the following effect:
“259. To sum up this Commission already found above on
appreciation of evidence collected/produced before it that 80% to
85% of the population in the State of Maharashtra is backward. B
According to this Commission to accommodate the 80% to 85%
backward Population within a ceiling of 50% will be injustice to
them and as such it would frustrate the very purpose of the
reservation policy arising out of Article 15 and Article 16 of the
Constitution. In the considered opinion of this Commission, this is
C
the extra ordinary situation, which has been mentioned in the 2nd
Term of Reference and as required by Indra Sawhney. 80% to
85% backward population adverted to above speaks about
quantifiable contemporary data, vide Nagaraj. If, accordingly,
ceiling of 50% increased efficiency in administration could not be
affected because all of them would compete. This Commission D
record facts findings that as required by the 2nd Term of Reference
there are not only exceptional circumstances but also extra ordinary
situations, which need to be applied for the grant of the reservation
in the present context in view of Clause (4) of Article 15 and
Clause (4) of Article 16 of the Constitution.) This will enable the
E
Government of Maharashtra to make special provision for the
advancement of the Maratha community, which is certainly socially
and educationally backward class and ultimately that will enable
the Government of Maharashtra to make provision for reservation
of appointment or posts in favour of the Maratha community in
the services under the State.” F
236. It is clear that the entire basis of the Commission to exceed
50% limit is that since the population of backward class is between 80%
to 85%, reservation to them within the ceiling 50% will be injustice to
them.
237. We may revert back to paragraph 810 where Indra Sawhney G
has given illustration which illustration is regarding certain extra-ordinary
situations. The exact words used in paragraph 810 are:
“It might happen that in far flung and remote areas the
population inhabiting those areas might, on account of their being
H
846 SUPREME COURT REPORTS [2021] 15 S.C.R.

A out of the main stream 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.”
B 238. Shri Rohtagi had submitted that the test laid down in paragraph
810 is only geographical test which was an illustration. It is true that in
Indra Sawhney the expression used was “far flung and remote areas”
but the social test which was a part of the same sentence stated “the
population inhabiting those areas might, on account of their being out of
the main stream of national life and in view of conditions peculiar to and
C characteristical to them”. Thus, one of the social conditions in paragraph
810 is that being within the main stream of National Life, the case of
Maratha does not satisfy the extra-ordinary situations as indicated in
paragraph 810 of Indra Sawhney. The Marathas are in the main stream
of the National Life. It is not even disputed that Marathas are politically
D dominant caste.
239. This Court in several judgments has noticed that what can
be the extra-ordinary situations as contemplated in paragraph 810 in
few other cases. We have referred above the three-Judge Bench judgment
in Union of India and others vs. Rakesh Kumar and others, (2010)
E 4 SCC 50, where three-Judge Bench held that exceptional case of 50%
ceiling can be in regard to Panchayats in scheduled areas. The above
three-Judge Bench has also been approved and reiterated by the
Constitution Bench of this Court in K.K. Krishnamurthi (supra). In
the above cases this Court was examining the reservation in Panchayats.
In the context of Part IX of the Constitution, 50% ceiling principle was
F applied but exception was noticed.
240. In the above context, we may also notice the paragraph 163
of the impugned judgment of the High Court where the High Court has
also come to the conclusion that the Maratha has made out a case of
extra-ordinary situation within the meaning of paragraph 610 of Indra
G Sawhney’s case. The High Court in paragraph 163 of judgment made
following observation:
“163...We would curiously refer to the reports, which would
disclose that it is for the first time in form of Gaikwad Commission
the quantifiable data has been collected and in terms of Nagaraj,
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 847
& ANR. [ASHOK BHUSHAN, J.]

the quantifiable data, inadequacy of representation are two key A
factors which would permit exceeding of reservation of 50% by
the State. ….”
241. The High Court has endorsed the opinion of the Commission
that when the population of backward class is 85% if they would get
only 50%, it would not be valid. In paragraph 165 of the impugned B
judgment following is the opinion of the High Court:
“165....The percentage of other classes of population who
have not disclosed their caste have been shown to be 15.7%. The
Commission therefore concludes that though the survey report
relates to rural area, the total percentage of existing backward C
classes, Maratha and kunbi, who claim to be backward comes to
48.6% + 35.7%, equivalent to 84.3% of the total population. The
Commission has also made a reference to the census of the year
1872 which calculates the population of Shudras and the census
report of 1872 from which the position emerge that more than
80% population was found backward in the census of 1872. The D
commission categorizes this as an extra-ordinary situation since
the majority of the unequals are living with the minority of the
equals. The figures available on record on the basis of 2011 census
disclose that the State population is about 11.24 crores out of which
3,68,83,000 is the population of OBC (VJNT, OBC SBC) The E
statistics of Ministry of Social Justice and Empowerment,
Government of India has given the State wise percentage of OBCs
in India and for Maharashtra it is 33.8% whereas SC-ST is 22%.
The Gaikwad commission has patil-sachin. ::: Uploaded on - 27/
06/2019 ::: Downloaded on - 05/04/2021 16:43:36 ::: 433 Marata(J)
final.doc therefore deduced that the population of Marathas is F
30%. Therefore, in terms of the population, if we look at the figures
then the situation which emerges is that almost 85% of the
population is of the backward classes and to suggest that if 85%
of people are backward and they get only a reservation of 50%, it
would be traversity of justice. When we speak of equality – equality G
of status and opportunity, then whether this disparity would be
referred to as achieving equality is the moot question. The situation
of extra-ordinary circumstances as set out though by way of
illustration in Indra Sawhney would thus get attracted and the
theme of the Indian Constitution to achieve equality can be attained.
H
848 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Once we have accepted that the Maratha community is a
backward class, then it is imperative on the part of the State to
uplift the said community and if the State does so, and in extra
ordinary circumstances, exceed the limit of 50%, we feel that this
is an extra ordinary situation to cross the limit of 50%.”
B 242. Again at page 453 of the judgment, the High Court reiterated
that extra-ordinary situations have been culled out by the report since
backward class is 85%, Maratha being 30%. Treating above to be extra-
ordinary situation following observations have been made in paragraph
170:
C “170...The extra-ordinary situations have been culled out
as the report has declared that Maratha community comprise 30%
of the population of the State and this figure is derived on the
basis of quantifiable data. The extra-ordinary situation is therefore
carved out for awarding an adequate representation to the Maratha
community who is now declared socially, educationally and
D economically backward. Based on the population of 30%,
Commission has arrived at a conclusion that the total percentage
of State population which is entitled for the constitutional benefits
and advantages as listed under Article 15(4) and Article 16(4)
would be around 85% and this is a compelling extra-ordinary
E situation demanding extra-ordinary solution within the constitutional
framework. ...”
243. From the above, it is clear that both the Commission and the
High Court treated the extra-ordinary situations with regard to exceeding
50% for granting separate reservation to Maratha, the fact that population
F of backward class is 85% and reservation limit is only 50%. The above
extra-ordinary 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
G 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. At this stage, we may notice
that what was said by Dr. Ambedkar in the Constituent Assembly debates
dated 30.11.1948 while debating draft Article 10/3 (Article 16(4) of the
H Constitution). Dr. Ambedkar by giving an illustration said :
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 849
& ANR. [ASHOK BHUSHAN, J.]

“Supposing, for instance, we were to concede in full the A
demand of those communities who have not been so far employed
in the public services to the fullest extent,what would really happen
is, we shall be completely destroying the first proposition upon
which we are all agreed, namely, that there shall be an equality of
opportunity. Let me give an illustration. Supposing, for instance,
B
reservations were made for a community or a collection of
communities, the total of which came to something like 70 per
cent. of the total posts under the State and only 30 per cent. are
retained as the unreserved. Could anybody say that the reservation
of 30 per cent. As open to general competition would be
satisfactory from the point of view of giving effect to the first C
principle, namely, that there shall be equality of opportunity? It
cannot be in my judgment. Therefore the seats to be reserved, if
the reservation is to be consistent with sub-clause (1) of Article
10, must be confined to a minority of seats. It is then only that the
first principle could find its place in the Constitution and effective
D
in operation.”
244. 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 E
giving illustration has already disapproved principle which is now
propounded by the High Court. We cannot approve the view of the High
court based on the same view taken by the Commission.
245. In view of the foregoing discussion, we are of the considered
opinion that neither the Gaikwad Commission’s report nor the judgment F
of the High Court has made out an extra-ordinary situation in the case of
Maratha where ceiling of 50% can be exceeded. We have already noticed
the relevant discussion and conclusion of the Commission in the above
regard and we have found that the conclusions of the Commission are
unsustainable. We, thus, hold that there is no case of extra-ordinary
situation for exceeding the ceiling limit of 50% for grant of reservation G
to Maratha over and above 50% ceiling of reservation.
(10)Whether the Act, 2018, as amended in 2019 granting
separate reservation for Maratha Community by exceeding
ceiling of 50 percent makes out exceptional circumstances
as per the judgment of Indra Sawhney case? H
850 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 246. We have noticed above the provisions of the 2018 Act. In
Section 2(j), the Maratha Community has been declared and included in
the educationally and socially backward category and under Section 4(1),
16 percent (12 percent as per 2019 Amendment Act) of the total seats in
educational institutions including private educational institutions, other
than minority educational institutions are reserved and 16 percent (13
B
percent as amended by 2019 Act) of total appointment in direct
recruitment in public services and posts. Section 3(4) has further made
it clear that nothing in the Act shall effect the reservation provided to
other backward classes under 2001 Act and 2006 Act. The legislative
history of 2018 enactment is necessary to be noticed to find out the
C objects and reasons for the enactment.
247. We have noted in detail various reports of National Backward
commissions as well as State Backward Commissions which have
repeatedly rejected the claim of Maratha to be included in Other
Backward Communities. After receipt of Bapat Commission Report
D which rejected the claim of Maratha to be Other Backward Classes, the
State Government appointed a Committee under the chairmanship of a
sitting Minister i.e. Narayan Rane Committee. On the basis of said Rane
Committee report, the State enacted 2014, Act, constitutional validity of
which Act was challenged in the High Court and was stayed by the
E High Court vide its order dated 07.04.2015. During pendency of the writ
petition, the State Government made a reference to the Maharashtra
Backward Class Commission in June, 2017 and one of the term of the
Reference was to the following effect: -
“ii) defines the exceptional circumstances and extraordinary
F situations applied for the benefits of the reservation in the
contemporary scenario.”
248. The Maharashtra Backward Class Commission submitted
its report in 15.11.2018, which report became the basis for 2018 enactment.
249. The Statements of objects and reasons for 2018 enactment
G
have been published in the Maharashtra Government Gazette dated
29.11.2018 publishing the bill No. 78(LXXVIII) of 2018. Paragraph 6 of
the Statement of object and reasons notices the earlier 2014 Act and the
stay by the High Court and further reference to the Commission.
Paragraph 6 of the Statement of objects and reasons is as follows:-
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 851
& ANR. [ASHOK BHUSHAN, J.]

“6. Thereafter, the Maharashtra State Reservation (of seats A
for admission in educational institutions in the State and for
appointments or posts in the public services under the State) for
Educationally and Socially Backward Category (ESBC) Act, 2014
(Mah.I of 2015), for converting the said Ordinance into an Act of
the State Legislature, was enacted on 9th January 2015. However,
B
the Constitutional validity of the said Act has been challenged
before the Hon’ble High Court. The Hon’ble High Court has stayed
the implementation of the said Act on 7th April, 2015.
Thereafter, the State Government has requested the
Maharashtra Backward Classes Commission in june 2017, to,-
C
(i) Determine Contemporary Criteria and parameters to be
adopted in ascertaining the social, educational and
economic backwardness of Marathas for extending
benefit of reservation under the constitutional provision
keeping in focus the various judgments of the courts,
reservation laws and constitutional mandate; D

(ii) Define the exceptional circumstances and extra ordinary
situation applied for the benefits of reservation in the
contemporary scenario;
(iii) Scrutinize and inspect the quantifiable data and other E
information which the State has submitted to Hon. Court
to investigate the backwardness of Maratha Community;
(iv) Determine the representation of Marathas in the State
Public Employment;
(v) Ascertain the proportion of the population of the Maratha F
Community in the State by collecting the information
available under various sources.”
250. Paragraph 8 of the Statement of objects and reasons further
states that the Commission has submitted its report to the State
Government on 15.11.2018. Paragraph 8 refers to the conclusion and G
the findings of the Commission. The conclusions and findings of the
Commission have been noticed in paragraph 8 of the Statement of Objects
and reasons.
251. The report of the Maharashtra State Backward Class
Commission dated 15.11.2018 became the basis for granting separate H
852 SUPREME COURT REPORTS [2021] 15 S.C.R.

A reservation to the Maratha community by exceeding the 50 percent ceiling
limit. We have already in detail has dealt the report of the Commission
especially Chapter 10 where Commission dealt with extraordinary
situation.
252. The Government after considering the report, its conclusion
B and findings and recommendations formed the opinion for giving separate
reservation to the Maratha community as socially and educationally
backward classes (SEBC). Paragraph 9 of the statement of objects and
reasons is as follows: -
“9. The Government of Maharashtra has considered the
C report, conclusions, findings and recommendations of the said
Commission. On the basis of the exhaustive study of the said
Commission on various aspects regarding the Marathas, like public
employment, education, social status, economical status, ratio of
population, living conditions, small size of land holdings by families,
percentage of suicide of farmers in the State, type of works done
D for living, migration of families, etc., analysed by data, the
Government is of opinion that,-
(a) The Maratha Community is socially and educationally
backward and a backward class for the purposes of
Article 15(4) and (5) and Article 16(4), on the basis
E of quantifiable data showing backwardness,
inadequacy in representation by the said Commission;
(b) Having regard to the exceptional circumstances and
extraordinary situation generated on declaring
Maratha as socially and educationally backward and
F their consequential entitlement to the reservations
benefits and also having regard to the backward class
communities already included in the OBC list, if
abruptly asked to share their well established
entitlement of reservation with a 30% of Maratha
G citizenry, it would be a catastrophic scenario creating
an extraordinary situation and exceptional
circumstances, which if not swiftly and judiciously
addressed, may lead to unwarranted repercussions
in the well harmonious co-existence in the State, it is
expedient to relax for the percentage of reservation
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 853
& ANR. [ASHOK BHUSHAN, J.]

by exceeding the limit of 50%, for advancement of A
them, without disturbing the existing fifty-two percent
reservation currently applicable in the State, only for
those who are not in creamy layer;
(c) It is expedient to provide for 16 percent of reservation
to such category; B
(d) It is expedient to make special provision, by law, or
the advancement of any Socially and Educationally
Backward Classes of Citizens, in so far as admission
to educational institutions, other than the minority
educational institutions, is concerned but such special C
provisions shall not include the reservation of seats
for election to the Village Panchayat Samitis, Zilla
Parishads, Municipal Councils, Municipal
Corporations, etc;
(e) It is expedient to provide for reservation to such D
classes in admissions to educational institutions
including private educational institutions whether
aided or unaided by the State, other than minority
educational institutions referred to in clause (1) of
Article 30 of the Constitution; and in appointments in
public services and posts under the State, excluding E
reservations in favour of Scheduled Tribes candidates
in the Scheduled Areas of the State under the Fifth
Schedule to the Constitution of India, as per the
notification issued on the 9th June 2014 in this behalf;
(f) By providing reservation to the Maratha Community, F
the efficiency in administration will not be affected,
since the Government is not diluting the standard of
educational qualification for direct recruitment for this
classes and there will definitely be competition
amongst them for such recruitment; and G
(g) To enact a suitable law for the above purposes.
In view of the above, the State Government is
of the opinion that the persons belonging to such
category below the Creamy layer need special help
to advance further, in the contemporary period, so H
854 SUPREME COURT REPORTS [2021] 15 S.C.R.

A that they can move to a stage of equality with the
advanced sections of the society, wherefrom they
can proceed on their own.”
253. The statement and object of the bill clearly indicates that the
State has formed the opinion on the basis of the report of the Commissions
B and had accepted the reasons given by the Commission holding that
extraordinary circumstances for exceeding the ceiling limit is made out.
We have already in detail analyze and noticed the report of the
Commission and have held that no extraordinary circumstances have
been made out on the basis of reasoning given in the report. While the
foundation itself is unsustainable, the formation of opinion by the State
C Government to grant separate reservation to the Marathas exceeding
50 percent limit is unsustainable.
254. It is well settled that all legislative Act and executive acts of
the Government have to comply with the Fundamental Rights. The State’s
legislative or any executive action passed in violation of Fundamental
D Rights is ultra vires to the Constitution. The 50 percent ceiling limit for
reservation laid down by Indra Sawhney case is on the basis of principle
of equality as enshrined in Article 16 of the Constitution. In paragraph
808, Indra Sawhney laid down: -
“808. It needs no emphasis to say that the principle aim
E of Article 14 and 16 is equality and equality of opportunity and
that Clause (4) of Article 16 is but a means of achieving the very
same objective. Clause (4) is a special provision - though not an
exception to Clause (1). Both the provisions have to be harmonised
keeping in mind the fact that both are but the restatements of the
F principle of equality enshrined in Article 14. The provision
under Article 16(4) - conceived in the interest of certain sections
of society - should be balanced against the guarantee of equality
enshrined in Clause (1) of Article 16 which is a guarantee held
out to every citizen and to the entire society. It is relevant to point
out that Dr. Ambedkar himself contemplated reservation being
G “confined to a minority of seats” (See his speech in Constituent
Assembly, set out in para 28). No other member of the Constituent
Assembly suggested otherwise. It is, thus clear that reservation
of a majority of seats was never envisaged by the founding fathers.
Nor are we satisfied that the present context requires us to depart
H from that concept.”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 855
& ANR. [ASHOK BHUSHAN, J.]

255. The Constitution Bench of this Court in M. Nagaraj (Supra) A
has reiterated that ceiling limit on reservation fixed at 50 percent is to
preserve equality. In paragraphs 111 and 114, following was laid down: -
“111. The petitioners submitted that equality has been
recognized to be a basic feature of our Constitution. To preserve
equality, a balance was struck in Indra Sawhney so as to ensure B
that the basic structure of Articles 14, 15 and 16 remains intact
and at the same time social upliftment, as envisaged by the
Constitution, stood achieved. In order to balance and structure
the equality, a ceiling limit on reservation was fixed at 50% of the
cadre strength; reservation was confined to initial recruitment and
was not extended to promotion... C

114. In Indra Sawhney, the equality which was protected
by the rule of 50%, was by balancing the rights of the general
category vis-à-vis the rights of BCs en bloc consisting of OBCs,
SCs and STs...”
D
256. We have found that no extraordinary circumstances were
made out in granting separate reservation of Maratha Community by
exceeding the 50 percent ceiling limit of reservation. The Act, 2018 violates
the principle of equality as enshrined in Article 16. The exceeding of
ceiling limit without there being any exceptional circumstances clearly
violates Article 14 and 16 of the Constitution which makes the enactment E
ultra vires.
257. We thus conclude that 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. F
(11) Gaikwad Commission Report – a scrutiny
258. Shri Pradeep Sancheti, learned senior counsel, appearing for
the appellant elaborating his submissions has questioned the Gaikwad
Commission’s Report on numerous grounds. Shri Patwalia, learned senior
G
counsel, appearing for the State of Maharashtra has refuted the challenge.
259. Shri Sancheti submits that judicial scrutiny of a quantifiable
data claimed by the State is an essential constitutional safeguard. He
submits that though the Court has to look into the report with judicial
deference but judicial review is permissible on several counts. A report
H
856 SUPREME COURT REPORTS [2021] 15 S.C.R.

A which violates the constitutional principle and rule of law can very well
be interfered with in exercise of judicial review. Shri Sancheti submits
that three National Backward Classes Commissions as well as three
State Backward Classes Commissions for the last 60 years have
considered the claim of Marathas to be included in Other Backward
Community which claim was repeatedly negatived. He submits that the
B
report of National Backward Classes Commissions and State Backward
Classes Commissions could not have been ignored by Gaikward
Commission in the manner it has dealt with the earlier reports. Shri
Sancheti submits that the National Backward Classes Commission as
well as the State Backward Classes Commission considered the
C contemporaneous data and came to a conclusion at a particular time.
Gaikward Commission which was appointed in 2017 had no jurisdiction
to pronounce that Maratha was backward community from the beginning
and all earlier reports are faulty. Shri Sancheti submits that Maratha
community is a most dominant community in the State of Maharashtra
weilding substantial political power. The majority of Legislature belongs
D
to Maratha community, out of 19 Chief Ministers of the Maharashtra
State, 13 Chief Ministers were from Maratha community. Out of 25
Medical Colleges in Maharashtra 17 Medical Colleges are founded/
owned by the people belonging to Maratha community. In 24 of the 31
District Central Cooperative Banks are occupied by the persons from
E Martha community. Out of the functioning 161 Cooperative Sugar
Factories in Maharashtra, in 86 Sugar Factories persons from Maratha
community are the Chairman. The Class which is politically so dominant,
cannot be said to be suffering from social backwardness.
260. Shri Sancheti further submits that survey by the Commission,
F data result, analysis therein suffers from various inherent flaws. The
sample survey conducted by the Commission is unscientific and cannot
be taken as respective sample. The sample size is very small. Only 950
persons were surveyed from Urban areas. He submits that Commission
was loaded with members belonging to the Maratha community. The
Agency for survey (Data collections) was selected without tendering
G process. Out of five organisations that conducted the survey two were
headed by persons from Maratha community. The Maratha community
has adequate representation in public service which fact is apparent
from data collected by the Commission itself. On the basis of data
collection by the Commission no conclusion could have been arrived
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 857
& ANR. [ASHOK BHUSHAN, J.]

that Maratha community is not adequately represented in services in the A
State.
261. Shri Patwalia refuting the submissions of the learned counsel
for the appellant submits that Gaikwad Commission has considered
conclusions arrived by all earlier Commissions and thereafter it had
recorded its conclusion. The Commission before proceeding further has B
laid down procedure for investigation. The Commission decided to conduct
survey as to collect information in respect of the social and educational
backwardness. The Commission has surveyed to collect information of
all families in two villages in each District and the Commission decided
to collect information by selecting one Municipal Corporation and one
Municipal Council from each of six regions of the State of Maharashtra. C
For the purpose of sample survey five different Agencies have been
nominated. The Commission also conducted public hearing, collected
representations from persons, numbering 195174. Out of representations,
193651 persons are in favour of reservation to Maratha whereas 1523
were in favour of reservation of Maratha community by creating separate D
percentage. The Commission also recorded evidence, obtained
information from the Government departments and other organisations,
Universities and after fixing parameters allocated 10 marks for socially
backward class, 8 marks out of 25 marks has been allocated for
educational backwardness, 7 marks to the economically backward class
and after following the marking system held that Maratha community E
has obtained more that 12.5 marks and has satisfied that it is socially,
educationally and economically backward class. 784 resolutions of Gram
Panchayats were in favour of granting reservation of OBC. It is submitted
that the representation of Maratha community in the public services is
not equivalent to their population which is 30%. Hence, they were entitled F
to separate reservation to make their representation as per their
population.
262. Shri Patwalia further submits that scope of judicial review of
a report of the Commission is too limited. This Court shall not substitute
its opinion in place of the opinion arrived by the Commission. He submits G
that parameters of judicial review have been laid down in Indra
Sawhney’s case. The Court shall not sit in appeal over the opinion of
experts. The report of Gaikwad Commission is based on sample study
of Maratha community. It is on the basis of the report of the Gaikwad
Commission that State Government formed opinion that Maratha
H
858 SUPREME COURT REPORTS [2021] 15 S.C.R.

A community is a socially and educationally backward class and deserves
a separate reservation in recognition of their legitimate claim. Inclusion
of Maratha community in already existing OBC community for whom
19% reservation is allowed shall have adverse effect on the OBC who
are already enjoying the reservation, hence decision was taken to grant
separate reservation.
B
263. We have considered the submissions of the parties and
perused the records. Before proceeding further, we need to notice the
parameters of judicial review in such cases.
264. We may first notice the Constitution Bench judgment of this
C Court in M.R. Balaji vs. The State of Mysore and others, AIR (1963)
SC 649. In the above case, this Court had occasion to consider Nagan
Gowda Committee which has submitted a report in 1961 and made a
recommendation for reservation. In pursuance of the report, the State
of Mysore had issued an order dated 31.07.1961 deciding to reserve
15% seats for Scheduled Castes and 3% for Scheduled Tribes and 50%
D for backward class totaling to 68% of seats available for admission to
the Engineering and Medical Colleges and to other technical institutions
in the State. The Constitution Bench elaborated the extent of judicial
review to an executive action. In paragraph 35 of the judgment, the
Constitution Bench laid down following:
E “35. The petitioners contend that having regard to the infirmities
in the impugned order, action of the State in issuing the said order
amounts to a fraud on the Constitutional power conferred on the
State by Article 15(4). This argument is well-founded, and must
be upheld. When it is said about an executive action that it is a
F fraud on the Constitution, it does not necessarily mean that the
action is actuated by mala fides. An executive action which is
patently and plainly outside the limits of the constitutional authority
conferred on the State in that behalf is struck down as being ultra
vires the State’s authority. If, on the other hand, the executive
action does not patently or overtly transgress the authority
G conferred on it by the Constitution, but the transgression is covert
or latent, the said action is struck down as being a fraud on the
relevant constitutional power. It is in this connection that courts
often consider the substance of the matter and not its form and in
ascertaining the substance of the matter, the appearance or the
H cloak, or the veil of the executive action is carefully scrutinized
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 859
& ANR. [ASHOK BHUSHAN, J.]

and if it appears that notwithstanding the appearance, the cloak A
or the veil of the executive action, in substance and in truth the
constitutional power has been transgressed, the impugned action
is struck down as a fraud on the Constitution. ….”
264(a). From the above, it is clear that what was emphasised by
the Court is that it is the substance of the matter which has to be examined B
and not its form, appearance, or the cloak, or the veil of the executive
action has to be carefully scrutinised.
265. The next judgment which we need to notice is the judgment
of this Court in The State of Andhra Pradesh and others vs. U.S.V.
Balram, etc., (1972) 1 SCC 660. The above case is also on basis of C
the Commission’s report. The Commission for the backward classes in
the State of Andhra Pradesh appointed by the State Government
submitted a report. The High Court held the enumeration of the backward
classes as well as reservation invalid. The State of Andhra Pradesh filed
the appeal. The grounds of challenge were noticed in Paragraph 77 of
the judgment. In paragraph 83-A of the judgment this Court observed: D
that the question to be answered is whether the materials relied in the
report are not adequate or sufficient to support its conclusion. Following
have been laid down in paragraph 83-A:
“83-A. … But, in our opinion, the question is whether on the
materials collected by the Commission and referred to in its report, E
can it be stated that those materials are not adequate or sufficient
to support its conclusion that the persons mentioned in the list as
Backward Classes are socially and educationally backward? ....
...Therefore, the proper approach, in our opinion, should be to see
whether the relevant data and materials referred to in the report F
of the Commission justify its conclusions. ….”
266. Thus, one of the parameters of scrutiny of a Commission’s
report is that whether on the basis of data and materials referred to in
the report whether conclusions arrived by the Commission are justified.
G
267. In Indra Sawhney, one of the questions framed by the
Constitution Bench to answer was question No.9, which is to the following
fact:
“9. Whether the extent of judicial review is restricted with
regard to the identification of Backward Classes and the
H
860 SUPREME COURT REPORTS [2021] 15 S.C.R.

A percentage of reservations made for such classes to a demonstrably
perverse identification or a demonstrably unreasonable
percentage?”
268. In paragraph 842 of Indra Sawhney following was laid
down:
B “842. It is enough to say on this question that there is no
particular or special standard of judicial scrutiny in matters arising
under Article 16(4) or for that matter, under Article 15(4). The
extent and scope of judicial scrutiny depends upon the nature of
the subject-matter, the nature of the right affected, the character
C of the legal and constitutional provisions applicable and so on.
The acts and orders of the State made under Article 16(4) do not
enjoy any particular kind of immunity. At the same time, we must
say that court would normally extend due deference to the judgment
and discretion of the executive — a co-equal wing — in these
matters. .....”
D
269. In paragraph 798, it was held by the Constitution Bench in
Indra Sawhney that opinion formed with respect to grant of reservation
is not beyond judicial scrutiny altogether. The Constitution Bench referred
to an earlier judgment of this Court in Barium Chemicals v. Company
Law Board, AIR 1967 SC 295. In the above regard paragraph 798 is
E extracted for ready reference:
“798. …It does not, however, mean that the opinion formed
is beyond judicial scrutiny altogether. The scope and reach of
judicial scrutiny in matters within subjective satisfaction of the
executive are well and extensively stated in Barium
F Chemicals v. Company Law Board [1966 Supp SCR 311 : AIR
1967 SC 295] which need not be repeated here. Suffice it to
mention that the said principles apply equally in the case of a
constitutional provision like Article 16(4) which expressly places
the particular fact (inadequate representation) within the subjective
G judgment of the State/executive.”
270. Indra Sawhney having referred to the judgment of this Court
in Barium Chemicals (supra) for the scope and reach of judicial
scrutiny. We need to refer the test enunciated in Barium Chemicals.
The Constitution Bench in Barium Chemicals had occasion to consider
the expression “if in the opinion of the Central Government occurring in
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 861
& ANR. [ASHOK BHUSHAN, J.]

Section 237 of Companies Act, 1956”. Justice Hidayatullah laid down A
that no doubt the formation of opinion is subjective but the existence of
the circumstances relevant to the inference as the sine quo non for action
must be demonstrable. Following observations were made in paragraph
27:
“27. …No doubt the formation of opinion is subjective but the B
existence of circumstances relevant to the inference as the sine
qua non for action must be demonstrable. If the action is questioned
on the ground that no circumstances leading to an inference of
the kind contemplated by the section exists, the action might be
exposed to interference unless the existence of the circumstances
is made out. As my brother Shelat has put it trenchantly: C

“It is not reasonable to say that the clause permitted the
Government to say that it has formed the opinion on circumstances
which it thinks exist….”
Since the existence of “circumstances” is a condition D
fundamental to the making of an opinion, the existence of the
circumstances, if questioned, has to be proved at least prima facie.”
271. Justice Shelat with whom Justice Hidayatullah has agreed in
paragraph 63 laid down following:
“63. .....Therefore, the words, “reason to believe” or “in the opinion E
of” do not always lead to the construction that the process of
entertaining “reason to believe” or “the opinion” is an altogether
subjective process not lending itself even to a limited scrutiny by
the court that such “a reason to believe” or “opinion” was not
formed on relevant facts or within the limits or as Lord Redcliff F
and Lord Reid called the restraints of the statute as an alternative
safeguard to rules of natural justice where the function is
administrative.”
272. Dr. Rajiv Dhavan, learned senior counsel, during his
submission has contended that Indra Sawhney in its judgment has relied
G
on a very weak test. He contended that the constitutional reservations
are required to be subjected to strict scrutiny tests.
273. We may also notice two-Judge Bench judgment of this Court
in B.K. Pavitra and others vs. Union of India and others, (2019)
16 SCC 129, where this Court had after referring to earlier judgment
H
862 SUPREME COURT REPORTS [2021] 15 S.C.R.

A laid down that Committee/commission has carried out an exercise for
collecting data, the Court must be circumspect in exercising the power
of judicial review to re-evaluate the factual material on record.
274. We may also notice a recent judgment of this Court in Mukesh
Kumar and another vs. State of Uttarakhand and others, (2020) 3
B SCC 1, in which one of us Justice L. Nageswara Rao speaking for
the Bench laid down following in paragraph 13:
“13. .....The Court should show due deference to the opinion of
the State which does not, however, mean that the opinion formed
is beyond judicial scrutiny altogether. The scope and reach of
C judicial scrutiny in matters within the subjective satisfaction of the
executive are extensively stated in Barium Chemicals
Ltd. v. Company Law Board [Barium Chemicals Ltd. v.
Company Law Board, AIR 1967 SC 295] , which need not be
reiterated.”

D 275. The grant of reservation under Article 15(4) or 16(4) either
by an executive order of a State or legislative measures are Constitutional
measures which are contemplated to fulfill the principle of equality. The
measures taken under Article 15(4) and 16(4) thus, can be examined as
to whether they violate any constitutional principle, are in conformity
with the rights under Article 14, 15 and 16 of the Constitution. The scrutiny
E of measures taken by the State either executive or legislative, thus, has
to pass test of the constitutional scrutiny. It is true that the Court has to
look into the report of the Commission or Committee with deference but
scrutiny to the extent as to whether any constitutional principle has been
violated or any constitutional requirement has not been taken into
F consideration is fully permissible. As laid down in V. Balram case (supra)
the judicial scrutiny is also permissible as to whether from the material
collected by the Commission or committee the conclusion on which the
Commission has arrived is permissible and reasonable. We are conscious
of the limitation on the Court’s scrutiny regarding factual data and
materials collected by the Court. We without doubting the manner and
G procedure of collecting the data shall proceed to examine the report on
the strength of facts, materials, and data collected by the Commission.
(12)Whether the data of Marathas in public employment as
found out by Gaikwad Commission makes out cases for grant
of reservation under Article 16(4) of the Constitution of India
H to Maratha community?
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 863
& ANR. [ASHOK BHUSHAN, J.]

276. The reservation under Article 16(4) of the Constitution is A
enabling power of the State to make any provision for reservation of
appointment or posts in favour of other backward class of citizens who
in the opinion of the State is not adequately represented in the services
under the State. The conditions precedent for exercise of power under
Article 16(4) is that the backward class is not adequately represented in
B
the services under the State.
277. The Constitution Bench of this Court in Indra Sawhney
while elaborating on Article 16(4) has held that clause (4) of Article 16
speaks of adequate representation and not proportionate representation
in paragraph 807: -
C
“807. We must, however, point out that clause (4) speaks
of adequate representation and not proportionate representation.
Adequate representation cannot be read as proportionate
representation. Principle of proportionate representation is
accepted only in Article 330 and 332 of the Constitution and that
too for a limited period. These articles speak of reservation of D
seats in Lok Sabha and the State legislatures in favour of Scheduled
Tribes and Scheduled Castes proportionate to their population,
but they are only temporary and special provisions. It is therefore
not possible to accept the theory of proportionate representation
though the proportion of population of backward classes to the E
total population would certainly be relevant...”
278. 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. Indra Sawhney has noted the above objective in paragraph 694 F
of the judgment (by Justice Jeevan Reddy), which is to the following
effect: -
“694. The above material makes it amply clear that the
objective behind clause (4) of Article 16 was the sharing of State
power. The State power which was almost exclusively G
monopolized by the upper castes i.e., a few communities, was
now sought to be made broad-based. The backward communities
who were till then kept out of apparatus of power, were sought to
be inducted there into and since that was not practicable in the
normal course, a special provision was made to effectuate the
said objective. In short, the objective behind Article 16(4) is H
864 SUPREME COURT REPORTS [2021] 15 S.C.R.

A empowerment of the deprived backward communities – to give
them a share in the administrative apparatus and in the governance
of the community.”
279. The State, when provides reservation under Article 16(4) by
executive action or by legislation, condition precedent, that the backward
B class is not adequately represented in the service has to be fulfilled. The
Constitution Bench in M.Nagaraj (Supra) has laid down following in
paragraph 102:-
“102...If the appropriate Government enacts a law providing
for reservation without keeping in mind the parameters in Article
C 16(4) and Article 335 then this Court will certainly set aside and
strike down such legislation...”
280. Further in paragraph 107, M.Nagaraj laid down following:-
“107...As long as the boundaries mentioned in Article 16(4),
D namely, backwardness, inadequacy and efficiency of
administration are retained in Articles 16(4-A) and 16(4-B) as
controlling factors, we cannot attribute constitutional invalidity to
these enabling provisions. However, when the State fails to identify
and implement the controlling factors then excessiveness comes
in, which is to be decided on the facts of each case. In a given
E
case, where excessiveness results in reverse discrimination, this
Court has to examine individual cases and decide the matter in
accordance with law. This is the theory of “guided power”. We
may once again repeat that equality is not violated by mere
conferment of power but it is breached by arbitrary exercise of
F the power conferred.”
281. The word ‘adequate’ is a relative term used in relation to
representation of different caste and communities in public employment.
The objective of Article 16(4) is that backward class should also be put
in main stream and they are to be enabled to share power of the State by
G affirmative action. To be part of public service, as accepted by the Society
of today, is to attain social status and play a role in governance. The
governance of the State is through service personnel who play a key
role in implementing government policies, its obligation and duties. The
State for exercising its enabling power to grant reservation under Article
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 865
& ANR. [ASHOK BHUSHAN, J.]

16(4) has to identify inadequacy in representation of backward class A
who is not adequately represented. For finding out adequate
representation, the representation of backward class has to be contrasted
with representation of other classes including forward classes. It is a
relative term made in reference to representation of backward class,
other caste and communities in public services. The Maratha community
B
is only one community among the numerous castes and communities in
the State of Maharashtra. The principal caste and communities in the
State of Maharashtra consists of Scheduled Castes/Scheduled Tribes,
de-notified tribes, nomadic tribes (B, C and D), special backward category
and other backward classes, general categories and the minorities.
C
282. A large number of castes and communities are included in
the above class of castes. We may refer to number of caste and
communities included in different groups. Few details are on the record:
SC (59), ST (47) and OBC (348).
283. The above details indicate that in a rough estimate in the D
State of Maharashtra, there are more than 500 castes and communities
which are living in the State and earning their livelihood.
284. For identifying inadequacy of one particular class in public
services, a balance has to be struck by the State, objective being all
backward classes which include Scheduled Caste, Scheduled Tribe to E
have representation in the public services. The State cannot take any
measure which violates the balance. The expression ‘inadequacy’ has
to be understood in above manner.
285. Now we proceed to look into the report of Gaikwad
Commission which has separately in detail in Chapter IX dealt with the F
subject “inadequacy of Marathas in the services under the State.”
286. The Commission in paragraph 214(b) of the report states: -
“214(b). The information regarding recruitment status of
all the Reserved Classes and Open Categories in the services G
under the State has been sought from the State Government and
other state agencies...”
287. The Commission was well aware of the Constitutional
conditions stipulated to be complied by the State for reserving the posts
H
866 SUPREME COURT REPORTS [2021] 15 S.C.R.

A in favour of backward class of citizens which is clear from what has
been stated in paragraph 215 which for ready reference is extracted as
below: -

“215. The three Constitutional conditions stipulated to be
compiled by State for reserving the posts in favour of any
B Backward Class of Citizens in the Public Services under or
controlled by the State as also confirmed to be non-negotiable by
the judicial pronouncement from time to time are as under: -

i) If such Backward Class is not adequately
C represented in the services under the State.

ii) The total reservation should not exceed 50%
unless there are extra ordinary and compelling
circumstances which should be demonstrated and
justified by a quantifiable data.
D
iii) Such reservation should be consistent with the
maintenance of efficiency in the administration.”

288. The Commission from paragraph 214 to 219 have noticed
the various information received from the government and position of
E different classes of society in open category and reserved category in
different services. Table A deals with strength of Marathas in
Government/Public Services/PRIs/ULBs in the State. Table B deals with
number of Marathas and others class and communities including open
category in Central services namely IAS, IPS, IFS and Table C deals
with position of employees and officers in Mantralaya Cadre. The tables
F
A and C enumerated the details grade wise from Grade-A to Grade-D.
We proceed to examine the issue on the basis of facts and figures
compiled by the Commission obtained from State and other
sources. The figures compiled relates as on 01.08.2018. Figures having
obtained from the State, there is no question of doubting the facts and
G figures compiled by the Commission.
289. Table A is part of paragraph 219 of the report. We need to
extract entire table A for appreciating the question.

H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 867
& ANR. [ASHOK BHUSHAN, J.]

Table A: Strength of Marathas in Government/Public A
Services/PRIs/ULBs in the State
S. Grad Sanctio Posts Vaca Post Post Posts Posts Posts Posts Posts Posts Posts Posts Posts
N e ned filled nt sanctio filled filled filled filled filled filled filled filled filled filled
o of posts in as posts ned for for from from from from from from from from from
servi on open open Marat SCs STs Vimu Nomadic Noma Noma other Specia
ces 01/08 categor categ ha kta Tribe dic dic backw l
/18 y ory class Jati (NT Tribe Tribe ard backw
from (VJ B) (NT (NT class ard
out of
open
A) C) D) (OBC) class
(SBC)
B
catego
ry
posts
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16
1 Grad 83532 49190 3434 42669 28048 9321 676 282 142 111 138 911 440 232
eA 2 (11.16% 5 2 2 6 3(1.66% (1. 0(5.27%)4(2.78%)
) (8.16%) (3. ((1.7%) (1. ) 09%)
38%) 34%)
2 Grad 83425 59504 2392 44527 31193 9057 9038 3980(4.7 1976 1693(2.0 2235 151 637 1500( 1.8
eB 1 (10.86 (10.83 7%) (2.37 3%) (2.68 3(1.81% 6(7.64%)0%)

3 Grad 952410 78340 1690 448575
%) %)
41338 15322 97215 66155
%)
23145 20136
%) )
25967 174 100 196 197
C
eC 7 03 1 4 (10.21 (6.95%) (2.43 (2.11%) (2.73 77 (10.52%)35
(16.09 %) %) %) (1. (2.07%)
%) 84%)
4 Grad 301385 19957 1018 137299 99592 36387 30369 17282 5671 5588(1.8 6248 34 24999 6342
eD 0 15 (12.07 (10.08 (5.73%) (1.88 5%) (2. 79 (8.29%) (2.
%) %) %) 07%) (1. 10%)
15%)
Total 142075 10916 3290 673070 57221 20798 14338 90239 32214 28533 35833 23380 135971 29
2 71 81 4 9 7 901
Ave 14.64 10.09 6.35 2.27 2.01 2.52 1.65 9.57 2.10
%
D

290. The relevant figures pertaining to posts filled as on 01.08.2018,
includes posts filled from open category, posts filled from Maratha classes
from out of open category posts, posts filled from SCs, posts filled from
STs, posts filled from Vimukt Jati(VJA), posts filled from Nomadic Tribes
E
NT-B, posts filled from Nomadic Tribes NT-C,NT-D and posts filled
from the backward classes (OBC) and posts filled from special backward
classes(SBC). The above figures correctly represent the representation
of different classes in public services.
291. Now, we take the representation of Marathas grade wise as
reflected by Table A. F

GRADE-A
292. Posts filled are 49,190 out of which open category posts are
28,048 and posts filled from Maratha classes are 9,321. The Maratha
Community obviously has been competing in the open category and has G
obtained the post as open category candidates. The Chart also mentioned
below each class the percentage against the column of posts filled from
Maratha class, percentage 11.16% has been mentioned. Similarly,
different percentage has been mentioned against all other classes. When
we take the total number of posts, posts filled for open category, it is
H
868 SUPREME COURT REPORTS [2021] 15 S.C.R.

A mentioned as 28,048 out of which Marathas are 9,321. When we
calculate the percentage of Maratha representation out of the
open category filled post, percentage comes out to 33.23 percent.
Thus, the correct percentage of Maratha out of the open category post
is 33.23 percent which indicates that more than 33 percent of the open
category post has been bagged by Maratha. In Maharashtra while
B
considering the status of reservation, we have noticed that 52 percent
posts are reserved for different categories and only 48 percent posts are
available for open category. Out of 48 percent posts available for open
category, Marathas have obtained 33.23 percent. The percentage given
by the Commission in below Maratha class i.e. 11.86% is obviously wrong
C and erroneous. The Maratha who have been competing in open category
cannot claim any post in the reserved category of 52 percent. Thus, the
representation has to be computed taking into the seats of open category.
Similarly, while computing the percentage of Marathas in Grade B, C
and D, similar mistakes have been committed by the Commission. In
Grade-B, total posts filled from open category were 31193 out of which
D
Marathas were 9057, percentage of which comes out to 29.03 percent.
In Grade-C, total posts filled from open category were 4,13,381 out of
which Marathas were 1,53,224, percentage of which comes out to 37.06
percent and for Grade-D, total posts filled form open category were
99592 out of which Marathas were 36387, percentage of which comes
E out to 36.53 percent.
293. A comparative chart of open category seats which are filled,
number of posts of Maratha community and percentage in the posts is
as follows: -

F

G
294. The above 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
H adequate in public services. The Constitutional pre-condition that
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 869
& ANR. [ASHOK BHUSHAN, J.]

backward class is not adequately represented is not fulfilled. The State A
Government has formed opinion on the basis of the above figures
submitted by the Gaikwad Commission. The opinion of the State
Government being based on the report, not fulfilling the Constitutional
requirement for granting reservation to Maratha community becomes
unsustainable.
B
295. Now we also look into Table B and C given in paragraphs
220 and 224 are as follows:-
Table B

C

D

Table C: Mantralaya Cadres
E

F

G

H
870 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 296. Table B contains all details including posts filled from open
category, posts filled from Maratha officers. Taking the post of IAS in
the open category filled are 161. Maratha IAS officers are 25, percentage
of which comes to 15.52 percent. Similarly, in IPS out of 140 filled up
posts, Marathas are 39, percentage of which comes to 27.85 percent
and similarly, in IFS, out of 89, 16 were Marathas, percentage of which
B
comes to 17.97 percent.
297. With regard to percentage mentioned in each column, error
has been committed by the Commission in reflecting less percentage
which is incorrect and erroneous. Following is a tabular chart of posts
filled in open category, posts filled by Maratha and percentage is as
C follows: -
Services No. of open category No. of filled from Percentage of Maratha in
posts filled Maratha Class open category post.
IAS 161 25 15.52%

IPS 140 39 27.85%

IFS 89 16 17.97%
D
298. Now, we come to Table C i.e. Mantralaya Cadres. Table C
also contains the details of posts filled from open category and posts
filled from Maratha category in Grade-A, B, C and D. For example,
Grade-A posts filled from open category are 248 out of which Marathas
E are 93, percentage of which comes out to 37.5 percent.
299. Similarly, in Grade-B, posts filled from open category are
793 out of which Marathas are 415, percentage of which comes to 52.33
percent.
300. For Grade-C, posts filled from open category are 808 out of
F which Marathas are 421, percentage of which comes to 52.10 percent.
301. For Grade-D, posts filled from open category are 333, out of
which 185 are Marathas, percentage of which comes to 55.55 percent.
302. The tabular chart for posts filled in open category, posts filled
by Marathas and percentage is as follows: -
G

H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 871
& ANR. [ASHOK BHUSHAN, J.]

303. All the three tables A, B and C and percentage of Marathas A
who have competed from open category make it abundantly clear that
they are adequately represented in the services. The Commission although
noted all the figures correctly in all the columns but committed error in
computing the percentage adding posts available for open category as
well as posts available for reserved categories. Maratha cannot claim to
B
compete for the reserved category posts; hence, there is no question of
computing their representation including the reserved category posts.
The representation of Marathas has to be against open category posts,
hence, their percentage has to be determined as compared to total open
category filled posts, and the representation of Marathas in most of the
Grades is above 30 percent. This is the basic error committed by the C
Commission in computing the percentage due to which it fell in error in
finding their representation in services inadequate.
304. There is one more fundamental error which has been
committed by the Commission. The Constitution pre-condition for
providing reservation as mandated by Article 16(4) is that the backward D
class is not adequately represented in the public services. The Commission
labored under misconception that unless Maratha community is not
represented equivalent to its proportion, it is not adequately represented.
We may notice what has been said by the Commission in paragraph 219
while recording its conclusion emerging from the analysis of information
contained in Table A,B,C and D. In paragraph 219(c), the Commission E
states: -
“219(C)...The obvious conclusion that emerges from the
above information is that in none of the four grades the strength
of Maratha Class employees is touching the proportion to their
population in the State which is based on various sources is F
estimated at an average 30%. So also, their presence in
administration is more at the lower grades of “C” and “D” and
have a comparatively lesser existence and role in decision making
levels of State administration in “A” and “B” grades...”
305. Indra Sawhney has categorically held that what is required G
by the State for providing reservation under Article 16(4) is not
proportionate representation but adequate representation. The
Commission thus proceeds to examine the entitlement under Article 16(4)
on the concept of proportionate representation in the State services which
is a fundamental error committed by the Commission. H
872 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 306. 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. We thus hold that Maratha
B
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.
(13)Social and Educational Backwardness of Maratha
Community
C
307. We have noted above that three National Backward Classes
Commissions and three State Backward Classes Commissions
considered the claim of Maratha community to be included in the other
backward community but all Commissions rejected such claim rather
they were held to be belonging to forward community. The first National
D Backward Classes Commission on 30.03.1955, i.e., Kaka Kalelkar
Commission did not include Maratha commission in the list of backward
communities. The Commission observed:
“In Maharashtra, besides the Brahman it is the Maratha who
claimed to be the ruling community in the villages and the Prabhu
E that dominated all other communities.
308. The second National Backward Classes Commission, i.e.,
Mandal Commission in its report included Maratha community as forward
Hindu community. The National Commission on Backward Classes in
the year 2000 elaborately examined the claim of Maratha community to
F be included in other backward class. The entire Commission heard the
claim of Maratha, including the members of State Backward Classes
Commission representing the claim of Maratha community. The National
Backward Classes commission held that Maratha community is an
advanced community of the society and it cannot be included with Kunbi
G under separate entity of its own. We may extract paragraphs 18, 19 and
22 of the Commission’s report which are to the following effect:
“18. A community with a history of such origin and close association
with the ruling classes, a community, many of whose members,
from its inception enjoyed important economic and political rights
and positions of power and influence and eventually became rulers
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 873
& ANR. [ASHOK BHUSHAN, J.]

and members of ruling classes at different levels cannot in any A
way be thought to have suffered any social disadvantages. The
Bench is aware that in what is identified as a ruling class/caste,
every member of it does not rule, but the fact that those who rule
come from a distinct caste community imparts a certain amount
of prestige and self-confidence even to those from the same caste/
B
community who personally belong to the ruling functionaries and
to the totality of that caste/community. It is significant to note that
Marathas have sought and received recognition of as of Kshatriya
Varna category and therefore does not secure them status or caste
upgradation Examples are Vanniakula Kshatriya in Tamil Nadu,
the adoption of the umbrella name “Kshatriya” by all BCs in C
Gujarat, Paundra- Kshatriya (an SC) in West Bengal and so on.
But no community which is recognized generally, i.e. by the rest
of the society as of “Kshatriya” category and correctly finds place
in a BC list.
19. The modern history of Maharashtra is witness to the continued D
dominance of Marathas in its society and polity as evident from
the fact, for example, that in the post-Independence period, the
community provided the largest number of Chief Ministers. During
the full Bench hearing on 14.12.99, the Bench had put the question
to the representatives of the Maratha Community as to why
despite there being so many Chief Ministers and important E
Ministers in the State, some of whom also became important
Ministers in the Centre, none of them got or moved to get Marathas
included in the list of BCs is eloquent testimony not only of the
fact that Marathas are not a backward class but also of the wisdom
and objectivity of these Chief Ministers. The only ground raised F
by the representatives of the community in support of their claim
for inclusion in the list of BCs what the fact of the origin of Marathas
from Kunbis and the alleged use of the name Maratha by some
members of Kunbi caste in some areas of the State. The Bench
is of the view that since there, undoubtedly, is a distinct class/
community Called “Maratha” and since it is obviously an advanced G
community in society and polity as already noted, it cannot be
included in the list of Backward Classes. The Bench cannot accept
the claim of the representatives of the community that many known
Maratha leaders including one whose name they mentioned have
H
874 SUPREME COURT REPORTS [2021] 15 S.C.R.

A got caste certificates as “Kunbi” as a valid ground for inclusion of
Marathas in the list of BCs with Kunbis. The Bench has no ground
to believe that any known Maratha leaders would have sought
such certificates, nor have those who have made this allegations
presented any evidence in support of this claim. But even if, for
argument’s sake, claim or argument is it does not prove that
B
Maratha is the same as Kunbi or synonym of Kunbi. Leaving
aside the allegations made by some of the representatives of the
community, the Bench is aware that some shortsighted individuals
belonging to different non-backward castes unfortunately resort
to seeking and securing fake caste certificates and in the context
C of the well-known qualities of India’s administrative system,
elements are not rare which entertain such requests and
deliberately issue false caste certificates. This menace, like
different forms of corruption, has become more and more
threatening. In certain Advices, the Commission has advised the
Central and State Governments how this menace could be
D
extirpated. But false caste-certificates and false caste-identities
based on them cannot change the reality of caste-identities as
they occur in society.”
22. In view of the above facts and position, the Bench finds that
Maratha is not a socially backward community but is a socially
E advanced and prestigious community and therefore the Request
for Inclusion of “Maratha” in the Central List of Backward Classes
for Maharashtra along with Kunbhi should be rejected. In fact
“Maratha” does not merit inclusion in the Central list of Backward
Classes for Maharashtra either jointly with “Kunbhi” or under a
F separate entity of it’s own.”
309. We may also refer now to the three State Backward Classes
Commissions appointed by the State. In the year 1961, Deshmukh
Committee appointed by the State of Maharashtra did not include the
Maratha community in the list of backward communities. In the year
G 2001, Khatri Commission rejected the demand of Maratha to be included
in backward class communities. On 25.07.2008, Bapat Commission in
its report rejected the demand to include Maratha community in the
other backward class communities by majority.
310. After the Bapat Commission’s report, the State Government
H had appointed Rane Committee to be headed by a Cabinet Minister who
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 875
& ANR. [ASHOK BHUSHAN, J.]

collected data and observed that Maratha may not be socially and A
educationally backward but recommended grant of reservation as
educationally and financially backward class. The National Commission
or the State Commission, when it is appointed to examine the claim of a
particular community to be included or excluded from a list of other
backward classes, it is to look into the contemporaneous data and fact.
B
The State to inform itself of the status of a particular community appoints
Commissions or Committees to take affirmative measures as ordained
by the constitutional provisions of Articles 15 and 16. The relevant is the
data status of the community as existing at the time of investigation and
report.
311. This Court in Ram Singh and others vs. Union of India, C
(2015) 4 SCC 697, has categorically laid down in paragraph 49 that a
decision which impacts the rights of many under Articles 14 and 16 of
the Constitution must be taken on contemporaneous inputs. Following
observations were made by two-Judge Bench of this Court in paragraph
49: D
“49. ......A decision as grave and important as involved in the
present case which impacts the rights of many under Articles 14
and 16 of the Constitution must be taken on the basis of
contemporaneous inputs and not outdated and antiquated data. In
fact, under Section 11 of the Act revision of the Central Lists is E
contemplated every ten years. The said provision further illuminates
on the necessity and the relevance of contemporaneous data to
the decision-making process.”
312. We fully endorse the above view of this Court. Any study of
Committee or Commission is with regard to present status since object F
is to take affirmative actions in present or in future to help the particular
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 G
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 H
876 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 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.
B 313. We, however, hasten to add that 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.
The Constitution Bench in Indra Sawhney has also laid down for
C periodical review which is for the purpose and object that those
communities who were earlier backward and advanced should be
excluded and those communities who were earlier advanced and might
have degraded into backward class should be included. Thus, the State
was fully entitled to appoint backward classes commission to collect
D relevant data and submit the report.

314. 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 “what
happened thereafter that now the Maratha community is to be
E included in OBC”. The Commission has not adverted to this aspect of
the matter. The Commission ought to have also focused on comparative
analysis as to what happened in the recent years that Marathas have
become backward from forward class. In this context, we may also
refer to the judgment of this Court in Ram Singh (supra) where National
Backward Classes Commission has rejected the claim of Jat to be
F
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
G 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. In paragraph 55 following was laid down:
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 877
& ANR. [ASHOK BHUSHAN, J.]

“55. The perception of a self-proclaimed socially backward A
class of citizens or even the perception of the “advanced classes”
as to the social status of the “less fortunates” cannot continue to
be a constitutionally permissible yardstick for determination of
backwardness, both in the context of Articles 15(4) and 16(4) of
the Constitution. Neither can backwardness any longer be a matter
B
of determination on the basis of mathematical formulae evolved
by taking into account social, economic and educational indicators.
Determination of backwardness must also cease to be relative:
possible wrong inclusions cannot be the basis for further inclusions
but the gates would be opened only to permit entry of the most
distressed. Any other inclusion would be a serious abdication of C
the constitutional duty of the State. Judged by the aforesaid
standards we must hold that inclusion of the politically organised
classes (such as Jats) in the List of Backward Classes mainly, if
not solely, on the basis that on same parameters other groups who
have fared better have been so included cannot be affirmed.”
D
315. We have already noted that after the 2014 enactment, writ
petition was filed in the High Court challenging 2014, enactment by which
Maratha community was declared as socially and educationally backward
class and separate reservation was provided for. The Ordinance XIII of
2014 was issued to that effect; writ petition was filed in the High Court E
challenging the Ordinance and inclusion of Maratha as other backward
category. The High Court elaborately heard all parties and passed a
detailed interim order in Writ Petition No.2053 of 2014 on 14.11.2014
where it set out various facts which were placed before the Court for
staying the Ordinance and staying the grant of separate reservation to
Maratha community. We may refer to paragraph 40(e) of the order F
dated 14.11.2014 of the High Court which is to the following effect:
“40. In the context of 16% reservation for Marathas upon their
classifications as Educationally and Socially Backward Classes,
he following position emerges:
G
...... ...... ......
(e) The petitioner in Public Interest Litigation No.140 of
2014 placed on record some statistics by reference to data compiled
by Dr. Suhas Palshikar in the book on “Politics of Maharashtra:
H
878 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Local Context of the Political Process:”, Editors: Suhas Palshikar
and Nitin Birmal, Pratima Prakashan, 2007 which suggest that-
(I) From 1962 to 2004, from out of 2430 MLAs, 1336 MLAs
corresponding to 55% were Marathas;

B (ii) Nearly 54% of the educational institutions in the State are
controlled by Marathas.
(iii) Members of the Maratha community dominate the universities
in the State with 60 to 75% persons in the management.
(iv) Out of 105 sugar factories, almost 86 are controlled by
C
Marathas. About 23 district cooperative banks have Marathas as
their Chairpersons.
(v) About 71.4% of the cooperative institutions in the State are
under control of Maratha community.
D (vi) About 75 to 90% of the land in the State is owned by Maratha
community.
None of the aforesaid was disputed by or on behalf of the
respondents in any of the affidavits or at the hearing.
E It was also stated by the petitioner at the hearing that ever since
the establishment of the State of Maharashtra on 1 November
1956, out of 17 Chief Ministers, 12 have been Marathas. The last
non-Maratha Chief Minister was during the period January 2003
to October 2004. This statement was also not disputed.”
F 316. The above stated facts were not disputed before the High
Court, and before this Court also in the submissions of the parties above
facts have been repeated and it has been submitted that those facts
clearly prove that Maratha are not socially backward. The Commission
in its report does not dispute that Maratha is politically dominant class.
G In this context, following is extracted from the report:
“Political dominance cannot be ground to determine social
and educational backwardness of any community.”
317. We have already found that Maratha community has adequate
and sufficient representation in the public services. We have also noted
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 879
& ANR. [ASHOK BHUSHAN, J.]

that representation of Maratha in public services is present in all categories A
i.e. Group A, Group B, Group C and Group D posts, and the Marathas
have occupied the posts by competing with open categories. The
representation of Marathas as noticed above has in many grades about
30% against all filled posts of open category. When a community is able
to compete with open category candidates and obtain substantial number
B
of seats (about 30%), this was relevant fact to be noticed while
considering the social and educational backwardness of the community.
Even if grant and non-grant of reservation to backward under Article
16(4) may not be considered as decisive for socially and educationally
backward class for grant under Article 15(4) but grant or non-grant
under Article 16(4) certainly is relevant for consideration which reflects C
on backward class or classes both in favour and against such backward
class. We have noticed that the Commission has taken erroneous view
that the representation of Maratha community in public services is not
proportionate to their population and has recommended for grant of
reservation under Article 16(4). We having disapproved the grant of
D
reservation under Article 16(4) to Maratha community, the said decision
becomes relevant and shall have certainly effect on the decision of the
Commission holding Maratha to be socially and educationally backward.
Sufficient and adequate representation of Maratha community in public
services is indicator that they are not socially and educationally backward.
E
318. The Commission in its report while discussing, in Chapter
VIII has analysed the various data including data of students belonging
to Maratha community who are pursuing Engineering, Medical and other
disciplines. In paragraph 178 the Commission has recorded that it obtained
the information as regards Marathas engaged in and pursuing academic
career, which would also throw light on the depth of their involvement in F
higher education. In Paragraph 178, 1(b) the Commission has extracted
a table for the last three academic years (2014-15, 2015-16, 2016-17) in
the Engineering Courses as received from the Directorate of Technical
Education of the State Government. Out of open category seats in
Diploma of 167168 Maratha achieved admission in 34,248 seats and in G
Graduate out of 221127, they could receive 32045 admissions, under
Post Graduate out of 63795 they could secure admission in 12666 .
Similarly details have been given about the Graduation and Post-Gaduation
Medical Courses for three years. In MBBS out of 4720 in the year
2015-16 Maratha received 428 seats, in other streams out of 14360 they
secured 2620 seats, in the above regards table is produced hereunder: H
880 SUPREME COURT REPORTS [2021] 15 S.C.R.

A

B

C

319. Similarly, the Commission has given details of Medical Post
D Graduation Courses in para-178-1(c)(c-ii) which indicates following with
regard to other under-Graduate and Post-Graduate posts, details of which
given in paragraph 178-1(d) which indicates:

E

F
320. The above facts and figures which were obtained by the
Commission itself indicate that students of Maratha community have
succeeded in open competition and got admissions in all the streams
including Engineering, Medical Graduation and Post-Graduation Courses
and their percentage is not negligible. The computation of percentage by
G the Commission against Maratha is since out of open category seats,
since 50% seats are for reserved category and only 50% are open, the
percentage of the Maratha, thus, shall substantially increase as per table
given by the Commission itself.
321. The Commission has also made studies with regard to
H representation of Maratha in prestigious Central services, namely, IAS,
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 881
& ANR. [ASHOK BHUSHAN, J.]

IPS and IFS with regard to State of Maharashtra. In the State of A
Maharashtra out of 161 posts filled from open category candidates, there
are 25 IAS belonging from Maratha. Similarly out of 140 posts filled
from open category, 39 of IPS belong to Maratha and in IFS out of 97,
89 posts filled from open category, there are 16 IAS belong to Maratha
community. When we compute the percentage of IAS, IPS and IFS,
B
percentage of Maratha out of the posts filled from open category
candidates comes to 15.52, 27.85 and 17.97 percentage respectively,
which is substantial representation of Marathas in prestigious Central
services.
322. We may further notice that the above numbers of Maratha
officers are only in the State of Maharashtra on the posts of the IPS, C
IAS and IFS being Central services. Similarly, the members of Maratha
community must have occupied the above posts in the other States of
the Country of which details are not there.
323. The Commission has also collected data regarding engagement
of Maratha in Higher Academic and Educational Fields of University D
Assignments in the State in paragraph 226. The Table D has been
compiled by the Commission. In the said paragraph where Marathas
occupied all categories of posts, including Head of Department, Professor,
Associate Professor and Assistant Professor, the Commission has in the
Chart also noted the number of Marathas occupying different posts in E
several Universities. It is true that in some of the Universities there may
not be Maratha community in one or two posts but Chart indicates that
there are sufficient number of Maratha in different Universities occupying
posts of HOD, Professor, Associate Professor and Assistant Professor.
324. There cannot be any concept of Marathas occupying all higher F
posts including the posts in the Universities according to their proportion
of population. The Commission has commented in the report that their
percentage in the above posts is less, whereas Table indicates that in
HOD post in Savitribai Phule University Pune, out of open category
filled post of 29 of HOD, only 3 are from Maratha community, out of 14
Professors only 2 are from Maratha community and out of 33 Associate G
Professors only 3 are from Maratha community and out of 79 Assistant
Professors only 3 are from Maratha community. The Commission
concludes that only 4.3% are from Maratha community in the above
posts.
H
882 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 325. In the Higher Academic posts and posts like IAS, IPS and
IFS, there cannot be any basis to contend that since Maratha community
is not occupying posts according to their proportion of population, they
are socially and educationally backward classes. The above are the data
and figures on the basis of which the Commission concluded that the
Marathas are socially and educationally backward class. When we look
B
into the aforesaid details regarding Maratha students occupying
Engineering, Medical and other streams, Maratha officers occupying
Central posts of IAS, IPS and IFS and are occupying posts of Higher
Academic in Universities, mere fact that their occupation of posts is not
equivalent to the proportion of their population cannot lead to the
C conclusion that they are socially and educationally backward. We are
conscious that the Commission has conducted sample survey collected
representations and other information, data and has allotted marks on
social and educational and economic backward class and in the marking
Marathas were found to be backward. However, data and facts which
have been collected by the Commission noted above clearly indicate
D
that Marathas are neither socially nor educationally backward and the
conclusion recorded by the Gaikwad Commission on the basis of its
marking system, indicator and marking is not sufficient to conclude that
Marathas are socially and educationally backward.
326. The facts and figures as noted above indicate otherwise and
E on the basis of the above data collected by the Commission, we are of
the view that the conclusion drawn by the Commission is not supportable
from the data collected. The data collected and tabled by the Commission
as noted above clearly proves that Marathas are not socially and
educationally backward.
F 327. 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. This Court in Ram Singh versus Union of India and
G others (Supra) has made such observations in paragraph 52:-
“52...This is because one may legitimately presume progressive
advancement of all citizens on every front i.e. social, economic
and educational. Any other view would amount to retrograde
governance. Yet, surprisingly the facts that stare at us indicate a
H governmental affirmation of such negative governance inasmuch
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 883
& ANR. [ASHOK BHUSHAN, J.]

as decade old decisions not to treat the Jats as backward, arrived A
at on due consideration of the existing ground realities, have been
reopened, in spite of perceptible all-round development of the
nation. This is the basic fallacy inherent in the impugned
governmental decision that has been challenged in the present
proceedings...”
B
327(a).We also endorse the opinion of Brother Justice S. Ravindra
Bhat on affirmative actions and giving of more and more incentives to
realise the constitutional objectives which undoubtedly is the obligation
and duty of the State.
328. We are constrained to observe that when more people aspire C
for backwardness instead of forwardness, the country itself stagnates
which situation is not in accord with constitutional objectives.
(14)The Constitution (One Hundred and Second Amendment)
Act, 2018 [The Constitution(102nd Amendment)Act, 2018].
329. I have advantage of going through erudite draft judgment D
circulated by my esteemed Brother, Ravindra Bhat. Although, we both
are aditem on the question of Constitutional validity of Constitution 102nd
Amendment Act, 2018, I regret my inability to agree with the
interpretation of the Constitution 102nd Amendment Act, 2018 as put by
my esteemed Brother. E
nd
330. The case of the appellant is that after 102 Amendment to
the Constitution which came into force with effect from 15.08.2018, the
Maharashtra Legislature had no competence to enact Act, 2018. After
the Constitution 102nd Amendment, the States have no power to identify
socially and educationally backward classes. The Constitution 102 nd F
Amendment had brought change in the regime already in existence for
backward class to fall it in line with Articles 341 and 342 of the
Constitution. Article 366(26C) says that the phrase SEBCs “means”
those backward classes which are so deemed under Article 342A, for
the purposes of this Constitution. The expression “for the purposes of
this Constitution” is used in Articles 15(4) and 16(4), 338B, 342A and in G
other Articles of the Constitution of India. In view of Article 342A the
SEBCs are those who are specified by the President by public notification
for the purposes of a State or Union Territory under sub-clause(1) of
Article 342A. Article 342A being analogous to Articles 341 and 342
must be interpreted exactly in the same manner. The Parliament inserted
H
884 SUPREME COURT REPORTS [2021] 15 S.C.R.

A phrase “Central List” in clause (2) of Article 342A only to emphasize
the fact that after Constitution 102nd Amendment, the only list that shall
be drawn for the purposes of SEBCs is the Central List drawn by the
President.
331. Learned counsel for the appellant contends that Maharashtra
B Legislature had no competence to enact 2018 Legislation after Constitution
102 nd Amendment. Learned senior counsel, Shri Gopal
Sankaranarayanan, submitted that for interpreting Article 342A reliance
on Select Committee report of Rajya Sabha is unwarranted.
332. The above submissions of the appellant have been stoutly
C refuted by the learned counsel for the State of Maharashtra as well as
other States. Under Articles 15(4) and 16(4), the Union and the States
have co-equal powers to advance the interest of the socially and
educationally backward classes; therefore, any exercise of power by
the Union cannot encroach upon the power of the State to identify socially
and educationally backward classes. The expression “for the purpose of
D the Constitution” can, therefore, only to be construed with the contours
of the power that Union is entitled to exercise with respect to entities,
institutions, authorities and public sector enterprises under the control of
the Union. The power to identify and empower socially and educationally
backward classes and determining the extent of reservation required is
E vested in the State by our Constitution and recognised by judicial
pronouncements including Indra Sawhney. The expression “Central List”
occurring in Article 342A(2) relates to the identification under Article
342A(1) wherein the Central List will include the socially and
educationally backward classes for the purposes of the Central
Government. Any other interpretation would allow to whittle down the
F legislative power of the State. Article 342A must be interpreted in the
historical context. It is submitted that the Constitution 102nd Amendment
has brought changes with regard to Central List. The expression Central
List is well understood concept in service jurisprudence for reservation
purposes of OBC, there are two lists, Central List and State List.
G 333. It is submitted that the Parliamentary Committee report and
other materials throw considerable light on the intention of Parliament
for inserting Article 342A in the Constitution. The Constitutional
amendment has to be interpreted in the light of the Parliamentary intention.
The power of the State Government to legislate cannot be taken away
H without amendment of Articles 15 and 16. The Parliament has not even
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 885
& ANR. [ASHOK BHUSHAN, J.]

exercised its power to occupy the field of a State by clearly using the A
expression ‘Central List’ in sub-clause (2). If the Constitution 102nd
Amendment is interpreted in the manner as appellants are interpreting,
the Constitutional Amendment shall be violative of the federal structure
and shall be unconstitutional.
334. We have in this batch of cases issued notice to learned B
Attorney General, the interpretation of the 102nd Amendment to the
Constitution of India being in question. Shri K.K. Venugopal, learned
Attorney general submits that the Constitution Bench in Indra Sawhney
in paragraph 847 had taken the view that there ought to be a permanent
body, in the nature of a Commission or Tribunal, to which complaints of
wrong inclusion or non-inclusion of groups, classes and sections in the C
lists of Other Backward Classes can be made. He submitted that the
Constitution Bench in Indra Sawhney directed the Government of India,
each of the State Governments and the Administrations of Union
Territories to constitute a permanent body for entertaining, examining
and recommending upon requests for inclusion and complaints of over- D
inclusion and under-inclusion in the lists of other backward classes of
citizens.
335. Learned Attorney General submits that in view of the above
nine-Judge Bench judgment of this Court it is inconceivable that any
such amendment can be brought in the Constitution that no State shall E
have competency to identify the backward classes, Article 15(4)
necessarily includes the power of identification. Under Article 12 of the
Constitution, the State includes the Government and Parliament, and
Government and Legislature of each State. In event the States have to
deprive their rights under Articles 15(4) and 16(4) of the Constitution, a
proviso had to be added. Article 15(4) and 16(4) are the source of power F
to identify SEBC. The Constitution 102nd amendment has not made any
such amendment by which the effect of Articles 15(4) and 16(4) has
been impacted. He submits that the National Commission for Backward
Classes Act, 1993 was passed by the Parliament in obedience of direction
of Indra Sawhney. Section 2(c) of the Act defines “lists” which is clearly G
limited to the Central Government; Learned Attorney General submits
that Article 342A covers the Central Government list alone. Learned
Attorney General has referred to Select Committee report dated
17.07.2017 and submits that Select Committee report after considering
the response and clarification by the concerned Ministry had opined that
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886 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 102nd Amendment was not to take the rights of the State to identify
other backward classes in their States. He submits that rights of the
State to identify OBC for their States in respect of the States are
untouched. Referring to State of Punjab, learned Attorney General submits
that there are two lists, Central List which contains 68 OBC, the State
List which contains 71, he submits that with regard to the Scheduled
B
Castes and Scheduled Tribes the President was given power in the
Constitution with which State had no concern. There was no attempt on
behalf of the Parliament to modify Articles 15(4) and 16(4).
336. Learned Attorney submits that Article 342A has to be read
harmoniously with the other provisions of the Constitution. Learned
C Attorney General has also referred to a short affidavit filed by the Union
of India in Writ Petition (C) No.12 of 2021-Dinesh B. vs. Union of India
& Ors., wherein Union has taken the stand that the power to identify
and specify the SEBCs lies with Parliament, only with reference to the
Central List of SEBCs. The State Governments may have their separate
D State Lists of SEBCs in recruitment. Learned Attorney General adopts
the same stand taken by the Union of India in the aforesaid affidavit. He
reiterated that the Parliament by passing Constitution Amendment has
not taken away the power of the State to identify backward classes
(SEBCs) in their States.
E 337. He further submits that there is no violation of basic structure
of the Constitution. Replying to the argument of learned counsel for the
writ petitioner under clause (2) of Article 368 learned Attorney General
submits that power to identify backward classes being under Articles 15
and 16, there is no occasion to examine the list of 7th Schedule to find the
source of power. He submits that no amendments have been made in
F any of the Lists of 7th Schedule so as to attract the proviso to Article
368(2). He submits that the Constitution 102nd Amendment did not require
ratification by the State Legislature.
338. Before coming to the Articles in the Constitution inserted by
the Constitution 102nd Amendment, we need to notice the Statement of
G Objects and Reasons contained in the Constitution (One Hundred and
Twenty-Third Amendment) Bill, 2017 which was introduced in the Lok
Sabha on 4th April, 2017 and some details regarding legislative process
which culminated into passing of the Constitution (One Hundred and
Second Amendment) Act, 2018. When Bill came for discussion to amend
the Constitution of India, it was passed by Lok Sabha on 10.04.2017.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 887
& ANR. [ASHOK BHUSHAN, J.]

Rajya Sabha on motion adopted by the House on 11.4.2017 referred the A
Bill to the Select Committee for examination of the Bill and report thereon
to the Rajya Sabha. The Select Committee of Rajya Sabha examined
the Bill by holding 7 meetings. The Select Committee asked clarification
on various issues from the Ministry and after receipt of clarifications
submitted the report on 17.07.2017. The Constitution (One Hundred and
B
Twenty-Third Amendment) Bill, 2017 with the Select Committee report
came for consideration before the Rajya Sabha. The Bill was passed
with certain amendments on 31.07.2017 by the Rajya Sabha. After
passing of the Bill, it was again taken by the Lok Sabha and it was
passed by the Lok Sabha on 2nd August, 2018. Rajya Sabha agreed to
the Bill on 6th August, 2018. C
339. The Statement of Objects and Reasons of Constitution 102 nd
Amendment are contained in the Constitution (One Hundred and Twenty-
Third Amendment) Bill, 2017. It is useful to extract the entire Statement
of Objects and Reasons as contained in the Bill:
“STATEMENT OF OBJECTS AND REASONS D
The National Commission for the Scheduled Castes and
Scheduled Tribes came into being consequent upon passing of the
Constitution (Sixty-fifth Amendment) Act, 1990. The said
Commission was constituted on 12th March, 1992 replacing the
Commission for the Scheduled Castes and Scheduled Tribes set
E
up under the Resolution of 1987. Under article 338 of the
Constitution, the National Commission for the Scheduled Castes
and Scheduled Tribes was constituted with the objective of
monitoring all the safeguards provided for the Scheduled Castes
and the Scheduled Tribes under the Constitution or other laws.
2. Vide the Constitution (Eighty-ninth Amendment) Act, 2003, a F
separate National Commission for Scheduled Tribes was created
by inserting a new article 338A in the Constitution. Consequently,
under article 338 of the Constitution, the reference was restricted
to the National Commission for the Scheduled Castes. Under
clause (10) of article 338 of the Constitution, the National G
Commission for Scheduled Castes is presently empowered to look
into the grievances and complaints of discrimination of Other
Backward Classes also.
3. In the year 1992, the Supreme Court of India in the matter of
Indra Sawhney and others Vs. Union of India and others (AIR
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888 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 1993, SC 477) had directed the Government of India to constitute
a permanent body for entertaining, examining and recommending
requests for inclusion and complaints of over-inclusion and under-
inclusion in the Central List of Other Backward Classes. Pursuant
to the said Judgment, the National Commission for Backward
Classes Act was enacted in April, 1993 and the National
B
Commission for Backward Classes was constituted on 14th
August, 1993 under the said Act. At present the functions of the
National Commission for Backward Classes is limited to examining
the requests for inclusion of any class of citizens as a backward
class in the Lists and hear complaints of over-inclusion or under-
C inclusion of any backward class in such lists and tender such advice
to the Central Government as it deems appropriate. Now, in order
to safeguard the interests of the socially and educationally
backward classes more effectively, it is proposed to create a
National Commission for Backward Classes with constitutional
status at par with the National Commission for Scheduled Castes
D
and the National Commission for Scheduled Tribes.
(Underlined by us)
4. The National Commission for the Scheduled Castes has
recommended in its Report for 2014-15 that the handling of the
E grievances of the socially and educationally backward classes
under clause (10) of article 338 should be given to the National
Commission for Backward Classes.
5. In view of the above, it is proposed to amend the Constitution
of India, inter alia, to provide the following, namely:—
F (a) to insert a new article 338 so as to constitute the National
Commission for Backward Classes which shall consist of a
Chairperson, Vice-Chairperson and three other Members. The
said Commission will hear the grievances of socially and
educationally backward classes, a function which has been
discharged so far by the National Commission for Scheduled Castes
G
under clause (10) of article 338; and
(b) to insert a new article 342A so as to provide that the President
may, by public notification, specify the socially and educationally
backward classes which shall for the purposes of the Constitution
be deemed to be socially and educationally backward classes.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 889
& ANR. [ASHOK BHUSHAN, J.]

6. The Bill seeks to achieve the above objectives. A
NEW DELHI; THAAWARCHAND GEHLOT.
The 30th March, 2017.”
340. By the Constitution 102nd Amendment, Articles 338 sub-clause
(10), new Article 338B, Article 342A and 366(26C) were inserted. B
341. In the writ petition before the High Court, the question was
raised “whether the Constitution (One Hundred and Second Amendment)
Act, 2018 affects the competence of the Legislature to enact the
impugned Legislation.” The High Court noticed the parliamentary process
including the report of Select Committee. The High Court held that use C
of Central List in sub-clause (2) of Article 342A is not in vacuum but it
must take its due meaning in reference to the context. The High Court
held that Parliament being conscious of the facts that there are two lists
operating in various States, firstly, for providing reservation prescribed
by the Central Government in Central services and the other list for
providing reservation by the respective State Governments, the Parliament D
intended that it would retain the power to include or exclude from the
Central List. The High Court, further, held that had the Parliament
intended to deprive the State of its power, it would have specifically
mentioned so. The High Court rejected the submission of the learned
counsel for the appellants that the Constitution 102nd Amendment denuded E
the power of the State to legislate with regard to other backward
categories in respect to State.
342. We have also noticed that Writ Petition (C) No.938 of 2020-
Shiv Sangram and another vs. Union of India and others, had been filed
questioning the constitutional validity of the Constitution 102 nd F
Amendment.
PRINCIPLES TO INTERPRET CONSTITUTIONAL
PROVISIONS
343. We in the present case are concerned with Constitutional
Amendment brought by the Constitution (One Hundred and Second G
Amendment) Act, 2018. The Constitutional Amendment is not a normal
legislative exercise and it is always carried out with an object and the
purpose. The Constitution of India is a grand norm given to us by the
Framers of the Constitution with great deliberations and debates. The
Constitution contained the objectives and goals of the nation and contains
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890 SUPREME COURT REPORTS [2021] 15 S.C.R.

A ideals For the governance by the State. Justice G.P. Singh in ‘Principles
of Statutory Interpretation’, 14th Edition under the heading ‘Intention
of the Legislature’ explains the statutory interpretation in following
words:
“A statute is an edict of the Legislature” and the
B conventional way of interpreting or construing a statute is to seek
the ‘intention’ of its maker. A statute is to be construed according
‘to the intent of those that make it’ and ‘the duty of judicature is to
act upon the true intention of the Legislature-the mens or sententia
legis’.” The expression ‘intention of the Legislature’ is a shorthand
reference to the meaning of the words used by the Legislature
C objectively determined with the guidance furnished by the accepted
principles of interpretation. “If a statutory provision is open to
more than one interpretation the court has to choose that
interpretation which represents the true intention of the Legislature,
in other words the legal meaning’ or ‘true meaning’ of the statutory
D provision.”
344. Chief Justice, Sir, Maurice Gwyer speaking in Federal Court,
in The Central Province and Berar Sales of Motor Spirit and
Lubricants Taxations Act, 1938, AIR 1939 Federal Court 1, held
that rules which apply to the interpretation of other statute applies equally
E to the interpretation of the constitutional enactment. But their application
is of necessity condition by the subject matter of the enactment itself.
345. On the interpretation of the Constitution of India, a Constitution
Bench of this Court in ITC Ltd. vs. Agricultural Produce Market
Committee and others, (2002) 9 SCC 232, laid down following
F proposition in paragraph 59:
“59. The Constitution of India deserves to be interpreted,
language permitting, in a manner that it does not whittle down the
powers of the State Legislature and preserves the federalism while
also upholding the Central supremacy as contemplated by some
G of its articles.”
346. It is said that the statute is an edict of the Legislature. The
elementary principle of interpreting the Constitution or statute is to look
into the words used in the statute, when the language is clear, the intention
of the Legislature is to be gathered from the language used. The aid to
interpretation is resorted to only when there is some ambiguity in words
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 891
& ANR. [ASHOK BHUSHAN, J.]

or expression used in the statute. The rule of harmonious construction, A
the rule of reading of the provisions together as also rule of giving effect
to the purpose of the statute, and few other principles of interpretation
are called in question when aids to construction are necessary in particular
context. We have already noticed the Statement of Objects and Reasons
of the statute in the earlier paragraph. Paragraph 5 of the Statement of
B
Objects and Reasons mentions amendment of Constitution by (a) inserting
a new Article 338B so as to constitute the National Commission for
Backward Classes and (b) to insert a new Article 342A so as to provide
that the President may, by public notification, specify the socially and
educationally backward classes. The Bill was moved by Thawarchand
Gehlot, Minister of Social Justice and Empowerment. C
347. Learned counsel for both the parties have advanced the
respective submissions on the interpretation of words “Central List” as
used in clause (2) of Article 342A. Both the parties having advanced
divergent submissions on the true and correct interpretation of “Central
List”, it becomes necessary to take aid of interpretation. What was the D
purpose and object of uses of expression ‘Central List’, sub-clause (2)
of Article 342A has to be looked into to find a correct meaning of the
constitutional provisions.
348. We have noticed above that learned Attorney General as
well as learned counsel for the State of Maharashtra and other States E
have relied on Select Committee report, debates in Parliament and the
Statement of Minister to find out the intention of the Parliament in inserting
Article 342A of the Constitution.
349. Shri Gopal Sankaranarayanan, learned senior counsel for
the petitioner has questioned the admissibility of Parliamentary Committee F
report. He submits that Parliamentary Committee report is not admissible
and cannot be used as aid to interpretation which submission has been
refuted by Shri P.S. Patwalia, learned senior counsel as well Dr. A.M.
Singhvi, learned Senior Counsel, who state that Parliamentary Committee
report as well the Statement made by the Minister in the Parliament are
admissible aids to the interpretation and are necessary to find out the G
intention of the Parliament in bringing the 102nd Amendment to the
Constitution. We, thus, proceed to look into the law as to admissibility of
report of Parliamentary Committee and Statement of Minister in the
Parliament as aids to interpret a constitutional provision.
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892 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 350. Shri Gopal Sankaranarayanan, relying on the judgment of
this Court in State of Travancore, Cochin and others vs. Bombay
Company Ltd., AIR 1952 SC 366, submits that this Court observed
that the “speeches made by the members of the Constituent Assembly
as external aid to the constitutional interpretation is not admissible. Mr.
Gopal Sankaranarayanan relies on paragraph 16 of the judgment which
B
is to the following effect:
“16. It remains only to point out that the use made by the
learned Judges below of the speeches made by the members of
the Constituent Assembly in the course of the debates on the
draft Constitution is unwarranted. That this form of extrinsic aid
C to the interpretation of statutes is not admissible has been generally
accepted in England, and the same rule has been observed in the
construction of Indian statutes — see Administrator-General of
Bengal v. Prem Nath Mallick [22 IA 107, 118] . The reason
behind the rule was explained by one of us in Gopalan case [1950
D SCR 88] thus:
“A speech made in the course of the debate on a bill could
at best be indicative of the subjective intent of the speaker, but it
could not reflect the inarticulate mental process lying behind the
majority vote which carried the bill. Nor is it reasonable to assume
E that the minds of all those legislators were in accord,”
or, as it is more tersely put in an American case—
“Those who did not speak may not have agreed with those
who did; and those who spoke might differ from each other —
United States v. Trans-Missouri Freight Association [169 US
F 290, 318] .”
This rule of exclusion has not always been adhered to in
America, and sometimes distinction is made between using such
material to ascertain the purpose of a statute and using it for
ascertaining its meaning. It would seem that the rule is adopted in
G Canada and Australia — see Craies on Statute Law, 5th Ed., p.
122.”
351. It is relevant to notice that in paragraph 16 it was also
observed that rule of exclusion has not always been upheld to in America
and sometime distinction is made between using such material to
H ascertaining purpose of a statute and using it for ascertaining its meaning.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 893
& ANR. [ASHOK BHUSHAN, J.]

The judgment itself indicated that the said material is sometime used to A
ascertain the purpose of a statute. The law has been explained and
elaborated in subsequent judgments of this Court which we shall notice
hereinafter. One more judgment on which reliance has been placed by
Shri Gopal Sankaranarayanan is the judgment of this Court in Aswini
Kumar Ghose and another v. Arabinda Bose and another, AIR
B
1952 SC 369, in which this Court referring to earlier judgment of this
Court in State of Travancore, Cochin and others vs. Bombay
Company Ltd. (supra) laid down in paragraph 31:
“31. As regards the speeches made by the Members of
the House in the course of the debate, this Court has recently
held that they are not admissible as extrinsic aids to the C
interpretation of statutory provisions: (State of Travancore-
Cochin v. Bombay Co. Ltd. etc. [ CA Nos. 25, 28 and 29 of
1952]”
352. With regard to speeches in the Constituent Assembly, the
Constitution Bench of this Court, in His Holiness Kesvananda Bharati D
vs. State of Kerala and another, (1973) 4 SCC 225, several Hon’ble
Judges in their separate judgments have relied and referred to Constituent
Assembly debates for the interpretation of provisions of Part III and
Part IV. Justice S.M. Sikri, CJ in paragraph 116 observed:
“186. The speeches can, in my view, be relied on only in E
order to see if the course of the progress of a particular provision
or provisions throws any light on the historical background or shows
that a common understanding or agreement was arrived at
between certain sections of the people..”
353. Justice Jaganmohan Reddy stoutly said that Constituent F
Assembly debates be looked into for ascertaining intention of our framers
of the Constitution. Justice Jaganmohan Reddy also held that in a
constitutional matter this Court should look into the proceedings of relevant
date including any speech which may throw light in ascertaining it. Justice
Jaganmohan Reddy in paragraph 1088 laid down: G
“1088. ...Speaking for myself, why should we not look into
them boldly for ascertaining what was the intention of our framers
and how they translated that intention? What is the rationale for
treating them as forbidden or forbidding material. The Court in a
constitutional matter, where the intent of the framers of the
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894 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Constitution as embodied in the written document is to be
ascertained, should look into the proceedings, the relevant data
including any speech which may throw light on ascertaining it. It
can reject them as unhelpful, if they throw no light or throw only
dim light in which nothing can be discerned. Unlike a statute, a
Constitution is a working instrument of Government, it is drafted
B
by people who wanted it to be a national instrument to subserve
successive generations. The Assembly constituted Committees
of able men of high calibre, learning and wide experience, and it
had an able adviser, Shri B.N. Rau to assist it. .....”
354. Justice H.R. Khanna in paragraph 1358 also in his judgment
C had elaborately referred to and relied on the speeches made in the
Constituent Assembly. In paragraph 1367 His Lordship laid down:
“1367. So far as the question is concerned as to whether
the speeches made in the Constituent Assembly can be taken into
consideration, this court has in three cases, namely, I.C. Golak
D Nath v. State of Punjab, H.H. Maharajadhiraja Madhav Rao
Jiwaji Rao Scindia Bahadur v. Union of India [(1971) 1 SCC
85 : (1971) 3 SCR 9] and Union of India v. H.S. Dhillon [(1971)
2 SCC 779 : (1972) 2 SCR 33] taken the view that such speeches
can be taken into account. In Golak Nath case Subba Rao, C.J.,
who spoke for the majority referred to the speeches of Pt.
E Jawaharlal Nehru and Dr Ambedkar on p. 791. Reference was
also made to the speech of Dr Ambedkar by Bachawat, J. in that
case on p. 924. In the case of Madhav Rao, Shah, J. who gave
the leading majority judgment relied upon the speech of Sardar
Patel, who was Minister for Home Affairs, in the Constituent
F Assembly (see P. 83). Reference was also made to the speeches
in the Constituent Assembly by Mitter, J. on pages 121 and 122.
More recently in H.S. Dhilion case relating to the validity of
amendment in Wealth Tax Act, both the majority judgment as
well as the minority judgment referred to the speeches made in
the Constituent Assembly in support of the conclusion arrived at.
G It can, therefore, be said that this Court has now accepted the
view in its decisions since Golak Nath case that speeches made
in the Constituent Assembly can be referred to while dealing with
the provision of the Constitution.”
355. Justice K.K. Mathew in paragraph 1598 had held that the
H debates in the Constituent Assembly can be looked into to understand
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 895
& ANR. [ASHOK BHUSHAN, J.]

the legislative history of a provision of the Constitution including its A
derivation, that is, the various steps leading up to and attending its
enactment, to ascertain the intention of the makers of the Constitution.
Following was laid down in paragraph 1598:
“1598. If the debates in the Constituent Assembly can be
looked into to understand the legislative history of a provision of B
the Constitution including its derivation, that is, the various steps
leading up to and attending its enactment, to ascertain the intention
of the makers of the Constitution, it is difficult to see why the
debates are inadmissible to throw light on the purpose and general
intent of the provision. After all, legislative history only tends to
reveal the legislative purpose in enacting the provision and thereby C
sheds light upon legislative intent. It would be drawing an invisible
distinction if resort to debates is permitted simply to show the
legislative history and the same is not allowed to show the
legislative intent in case of latent ambiguity in the provision. ....”
356. In the Constitution Bench in R.S. Nayak vs. A.R. Antulay, D
1984(2) SCC 183, The argument was again advanced that debates in
Parliament or the report of the Commission or Committee which proceed
the enactment is not permissible aid to construction. Submission was
noted in paragraph 32 of the judgment to the following effect:
“32. Mr. Singhvi contended that even where the words in a E
statute are ambiguous and may be open to more than one meaning
or sense, a reference to the debates in Parliament or the report of
a commission or a committee which preceded the enactment of
the statute under consideration is not a permissible aid to
construction. ...” F
357. In paragraph 33 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 paragraph 33 following was laid down:
“33. The trend certainly seems to be in the reverse gear in
that in order to ascertain the true meaning of ambiguous words in G
a statute, reference to the reports and recommendations of the
commission or committee which preceded the enactment of the
statute are held legitimate external aids to construction. The
modern approach has to a considerable extent eroded the
exclusionary rule even in England. ……”
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896 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 358. Ultimately, this Court rejected the submission raised and held
that the reports of the Committee were admissible. Following was laid
down in paragraph 34:
“34. ….Further even in the land of its birth, the exclusionary
rule has received a serious jolt in Black-Clawson International
B Ltd. v. Papierwerke Waldhof-Aschaffenburg AG:[(1975) 1 All
ER 810, 843] Lord Simon of Claisdale in his speech while
examining the question of admissibility of Greer Report observed
as under:
“At the very least, ascertainment of the statutory
C objective can immediately eliminate many of the possible
meanings that the language of the Act might bear; and, if an
ambiguity still remains, consideration of the statutory objective
is one of the means of resolving it.
The statutory objective is primarily to be collected from the
D provisions of the statute itself. In these days, when the long title
can be amended in both Houses, I can see no reason for having
recourse to it only in case of an ambiguity — it is the plainest of
all the guides to the general objectives of a statute. But it will not
always help as to particular provisions. As to the statutory objective
of these, a report leading to the Act is likely to be the most potent
E aid; and, in my judgment, it would be mere obscurantism not to
avail oneself of it. There is, indeed clear and high authority that it
is available for this purpose. ……”
359. It is noted that although the above Constitution Bench was
subsequently overruled by seven-Judge Bench but the above proposition
F was not touched.
We may also notice the Constitution Bench judgment of this Court
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
G 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 paragraph 65 following was laid down:
“65. Mr. Palkhivala read out to us an extract from the
speech of the then Law Minister who, while speaking on the
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 897
& ANR. [ASHOK BHUSHAN, J.]

amendment to Article 31-C, said that the amendment was being A
introduced because the government did not want the “let and
hindrance” of the fundamental rights. If the Parliament has
manifested a clear intention to exercise an unlimited power, it is
impermissible to read down the amplitude of that power so as to
make it limited. The principle of reading down cannot be invoked
B
or applied in opposition to the clear intention of the legislature. We
suppose that in the history of the constitutional law, no
constitutional amendment has ever been read down to mean the
exact opposite of what it says and intends. In fact, to accept the
argument that we should read down Article 31-C, so as to make it
conform to the ratio of the majority decision in Kesavananda C
Bharati [Kesavananda Bharati v. State of Kerala, 1973 Supp
SCR 1 : (1973) 4 SCC 225 : AIR 1973 SC 1461] , is to destroy the
avowed purpose of Article 31-C as indicated by the very heading
“Saving of Certain Laws” under which Articles 31-A, 31-B and
31-C are grouped. Since the amendment to Article 31-C was
D
unquestionably made with a view to empowering the legislatures
to pass laws of a particular description even if those laws violate
the discipline of Articles 14 and 19, it seems to us impossible to
hold that we should still save Article 31-C from the challenge of
unconstitutionality by reading into that Article words which destroy
the rationale of that Article and an intendment which is plainly E
contrary to its proclaimed purpose.”
360. We may conclude the discussion on the topic by referring to
a subsequent Constitution judgment of this Court 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 above F
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 G
R.S. Nayak v. A.R. Antulay (supra) laid down following in paragraphs
123 and 134:
“123. A Constitution Bench in R.S. Nayak v. A.R.
Antulay [R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, after
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898 SUPREME COURT REPORTS [2021] 15 S.C.R.

A referring to various decisions of this Court and development in
the law, opined that the exclusionary rule is flickering in its dying
embers in its native land of birth and has been given a decent
burial by this Court. The Constitution Bench further observed that
the basic purpose of all canons of the Constitution is to ascertain
with reasonable certainty the intention of Parliament and for the
B
said purpose, external aids such as reports of Special Committee
preceding the enactment, the existing state of law, the environment
necessitating enactment of a legislation and the object sought to
be achieved, etc. which Parliament held the luxury of availing
should not be denied to the court whose primary function is to
C give effect to the real intention of the legislature in enacting a
statute. The Court was of the view that such a denial would deprive
the Court of a substantial and illuminating aid to construction and,
therefore, the Court decided to depart from the earlier decisions
and held that reports of committees which preceded the enactment
of a law, reports of Joint Parliamentary Committees and a report
D
of a commission set up for collecting information can be referred
to as external aids of construction.
134. From the aforesaid, it clear as day that the Court can
take aid of the report of the Parliamentary Committee for the
purpose of appreciating the historical background of the statutory
E provisions and it can also refer to committee report or the speech
of the Minister on the floor of the House of Parliament if there is
any kind of ambiguity or incongruity in a provision of an enactment.”
361. Justice Dipak Misra, CJ speaking for himself and Justice
A.M. Khanwilkar recorded his conclusion in paragraph 159.1 and 159.2
F to the following effect:
“159.1. Parliamentary Standing Committee report can be taken
aid of for the purpose of interpretation of a statutory provision
wherever it is so necessary and also it can be taken note of as
existence of a historical fact.
G
159.2. Judicial notice can be taken of the Parliamentary Standing
Committee report under Section 57(4) of the Evidence Act and it
is admissible under Section 74 of the said Act.”
362. Dr. Justice D.Y. Chandrachud laid down following in paragraph
260:
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 899
& ANR. [ASHOK BHUSHAN, J.]

“260. The use of parliamentary history as an aid to statutory A
construction is an area which poses the fewest problems. In
understanding the true meaning of the words used by the legislature,
the court may have regard to the reasons which have led to the
enactment of the law, the problems which were sought to be
remedied and the object and purpose of the law. For understanding
B
this, the court may seek recourse to background parliamentary
material associated with the framing of the law.”
363. Justice Ashok Bhushan, one of us, in his concurring judgment
has observed that Committees of both Rajya Sabha and Lok Sabha are
entrusted with enormous duties and responsibilities in reference to the
functions of Parliament. Following was observed in paragraph 335: C

“335. Various committees of both Rajya Sabha and Lok
Sabha are entrusted with enormous duties and responsibilities in
reference to the functions of Parliament. Maitland
in Constitutional History of England while referring to the
committees of the Houses of British Parliament noticed the D
functions of the committees in the following words:
“… Then again by means of committees the Houses
now exercise what we may call an inquisitorial power. If
anything is going wrong in public affairs a committee may be
appointed to investigate the matter; witnesses can be summoned E
to give evidence on oath, and if they will not testify they can be
committed for contempt. All manner of subjects concerning
the public have of late been investigated by parliamentary
commissions; thus information is obtained which may be used
as a basis for legislation or for the recommendation of F
administrative reforms.”
364. After noticing the relevant Rules, it was held that
parliamentary materials including reports and other documents are
permissible to be given as evidence in the Court of law. In paragraph
351 following was laid down: G
“351. From the above discussion it is clear that as a matter
of fact the parliamentary materials including reports and other
documents have been sent from time to time by the permission of
Parliament itself to be given as evidence in courts of law.”
H
900 SUPREME COURT REPORTS [2021] 15 S.C.R.

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

D For the reasons I have given, in my judgment reference to
parliamentary materials for the purpose of construing legislation
does not breach Article 9 of the Bill of Rights. …””
366. In paragraph 395, it was also noted by this Court that
parliamentary proceeding including reports of the Standing committee
E of Parliament were relied in large number of cases of this Court. In
paragraph 395 following was laid down:
“395. This Court in a number of cases has also referred to
and relied on parliamentary proceedings including reports of the
Standing Committee of Parliament. The learned counsel for the
F petitioners have given reference to several cases in this regard,
namely, Catering Cleaners of Southern Railway v. Union of
India [Catering Cleaners of Southern Railway v. Union of
India, (1987) 1 SCC 700 : 1987 SCC (L&S) 77] where the Court
has taken into consideration report of a Standing Committee of
petitions. Another case relied on is Gujarat Electricity
G Board v. Hind Mazdoor Sabha [Gujarat Electricity
Board v. Hind Mazdoor Sabha, (1995) 5 SCC 27 : 1995 SCC
(L&S) 1166]. In State of Maharashtra v. Milind [State of
Maharashtrav. Milind, (2001) 1 SCC 4 : 2001 SCC (L&S) 117],
the Court has referred to and relied on a Joint Parliamentary
Committee report. In Federation of Railway Officers
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 901
& ANR. [ASHOK BHUSHAN, J.]

Assn. v. Union of India [Federation of Railway Officers A
Assn. v. Union of India, (2003) 4 SCC 289 : AIR 2003 SC 1344],
the Court has referred to a report of the Standing Committee of
Parliament on Railways. In Aruna Roy v. Union of India [Aruna
Royv. Union of India, (2002) 7 SCC 368 : 5 SCEC 310] , report
of a Committee, namely, S.B. Chavan Committee, which was
B
appointed by Parliament was relied and referred. M.C.
Mehta v. Union of India [M.C. Mehta v. Union of India, (2017)
7 SCC 243] was again a case where report of a Standing
Committee of Parliament on Petroleum and Natural Gas has been
referred to and relied. Other judgments where Parliamentary
Committee reports have been relied are Kishan Lal Gera v. State C
of Haryana [Krishan Lal Gera v. State of Haryana, (2011) 10
SCC 529] , Modern Dental College and Research
Centre v. State of M.P. [Modern Dental College & Research
Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] and Lal
Babu Priyadarshi v. Amritpal Singh [Lal Babu Priyadarshi
D
v. Amritpal Singh, (2015) 16 SCC 795 : (2016) 3 SCC (Civ) 649].”
367. The above discussion makes it clear that the law is well
settled in this county that Parliamentary Committee reports including
speech given by the Minister in the Parliament and the debates are
relevant materials to ascertain the intention of Parliament while constituting
constitutional provisions. We, thus, reject the objection of Shri Gopal E
Sankaranarayanan that Parliamentary Committee report and the speech
of the Minister cannot be looked into for ascertaining the intention of
Parliament in bringing the Constitution 102nd Amendment.
368. The intention of the Parliament for bringing the constitutional
amendment is necessary to be found out to interpret the constitutional F
amendments. The words used in constitutional amendment have to be
interpreted in the context for which they were used. We may refer to
the celebrated words of Justice Holmes in Towne v. Eisner, 245 US
418, where he observed: “a word is not crystal, transparent and
unchanged; it is a skin of living thought and may very greatly in G
colour and content according to the circumstances and the time
in which it is used.” In what context the words “Central List” has
been used in Article 342A(1) has to find out and what was the intent of
Parliament in using the words “Central List” in sub-clause (2) and what
was the intent of the Parliament in inserting Article 342A in the
Constitution are relevant for purposes of constitutional interpretation. H
902 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 369. We need to look into the parliamentary process which
culminated into parliament passing the Constitution (102nd Amendment)
Act, 2018. The Constitution (123rd Amendment) Bill, 2017 was introduced
in the Lok Sabha on 02.04.2017 and was passed in Lok Sabha on
10.04.2017. When the Bill came to the Rajya Sabha, by a Motion adopted
by the House on 11.04.2017, the Bill was referred to the Select Committee
B
comprising of 25 members of Rajya Sabha. The Select Committee held
seven meetings before submitting its report. Several members gave their
response to the Committee. In the first meeting of the Committee held
on 17.04.2017, Ministry of Social Justice and Empowerment placed
certain clarification of the Minister which was noticed and incorporated
C in paragraph 6 of the Minutes which is to the following effect:
“6. Secretary, Ministry of Social Justice and Empowerment further
clarified that under the Backward Classes, unlike the SCs & STs,
there are two lists i.c. the Central List and the State List. The
Central List provides for education and employment opportunities
D in Central Government Institutions. In the State List, the States
are free to include or exclude, whoever they wish to, in their
Backward Classes List. As a result, if there is a certain category
which is not in the Central List, it may still be found in the State
List. That is the freedom and prerogative of the State Backward
Classes Commission and that would continue to be there.
E
370. The Committee in its meeting held on 22.05.2017 asked several
clarifications. One of the clarifications asked was “To what extent the
rights of the States would be affected after coming into by the Bill under
the Constitution of the Select Committee.”

F 371. The Committee held sixth meeting on 03.07.2017. One of
the proposed amendments have been noted in paragraph 21 of the
Minutes, clarification on which was also noted in paragraph and the
amendment was not accepted. The amendment proposed was
“notwithstanding in any … in clause (9), the State Government shall
continue to have power … socially and educationally backward classes.”
G The above proposed amendment in Article 338B was not accepted since
Ministry clarified that the power of the State is not affected. Paragraphs
21, 22 and 23 are as follows:
“21. The Committee discussed the amendment wherein in
article 338B a new sub-clause (10) was proposed to be inserted.
H This sub-clause (10) would state that ‘notwithstanding anything
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 903
& ANR. [ASHOK BHUSHAN, J.]

provided in clause 9, the State Government shall continue to have A
powers to identify Socially and Educationally Backward Classes’.
22. It was clarified by the Ministry to the Committee that
the proposed amendment does not interfere with the powers of
the State Governments to identify the Socially and Educationally
Backward Classes. The existing powers of the State Backward B
Classes Commission would continue to be there even after the
passage of the Constitution (One Hundred and Twenty-third
Amendment) Bill, 2017.
(underlined by us)
23. The Committee held discussions on the amendments C
proposed and in view of the explanation given by the Ministry, the
Committee adopted clause 3 without any amendments.”
372. Article 342A was also discussed by the Committee various
set of Amendments were noted in reference to Article 342A. The
Committee noticed amendments proposed in Article 342A in paragraph D
24 t the following effect:
“24. The Committee then took up Clause 4 of the Bill for
consideration. The Committee considered the following amendment
proposed by certain Members:
E
(h) Sub-clause (1) of article 342A be modified as follows:
“The President with respect to any State or Union Territory,
and where it is a State, on the request made by the governor
thereof, by public notification specify the socially and
educationally backward classes for the purposes of making F
provisions for reservation of appointment to an office or posts
under Government of India or under any authority of
Government of India or under the control of the Government
of India or seats in Central Government educational institutions”
(ii) Sub-clause (2) of article 342A be modified as follows:
G
“The President may, on the advise of the National
Commission for Backward Classes include or exclude from
the Central list of socially and educationally backward classes
specified in a notification issued under clause (1).”;
(iii) In article 342A insert clause (3) as follows: H
904 SUPREME COURT REPORTS [2021] 15 S.C.R.

A “The Governor of a State, by public notification specify the
socially and educational backward classes for the purposes of
making provisions for reservation of posts under that State or
under any other authority of the State or under the central of
the State, or seats in the educational institutions. within that
State” and
B
(iv) In article 342A insert clause (4) as follows:
“The Governor may, on the advice of the State Commission
of Backward Classes include or exclude from the State list of
socially and educationally backward classes specified in a
C notification issued under clause (3)”
373. The Committee, however, did not accept any of the
amendments in view of explanation furnished by the Ministry. The 7th
meeting was held on 14.07.2017. The clarification issued by the Secretary
of Ministry of Social Justice and Empowerment has been noticed in
D paragraph 29 which is to the following effect:
“29. ………She also clarified that conferring of constitutional
status on the National Commission for Backward Classes would
in no way take away the existing powers of the State Backward
Classes Commissions. The only difference would be with regard
E to the Central List, where the power of exclusion or inclusion,
after the Constitutional amendment, it would come to the
Parliament with the recommendations of the NCBC.”
374. After elaborate discussion, the Committee submitted its report
dated 19.07.2017. One of the amendments which was moved before
F the Committee in Article 338B was noticed and not accepted. In the
report the Ministry’s stand was that proposed amendment does not
interfere with the power of the State Government to identify the socially
and educationally backward classes. Paragraphs 47 and 48 of the report
is as follows:
“47. The Committee discussed the amendment wherein in article
G
338B a new sub-clause (10) was proposed to be inserted. This
sub-clause (10) would read as follows:
‘Notwithstanding anything provided in clause 9, the State
Government shall continue to have powers to identify Socially
and Educationally Backward Classes’
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 905
& ANR. [ASHOK BHUSHAN, J.]

48. It was clarified by the Ministry of Social Justice and A
Empowerment to the Committee that the proposed amendment
does not interfere with the powers of the State Governments to
identify the Socially and Educationally Backward Classes. The
existing powers of the State Backward Classes Commission would
continue to be there even after the passage of the Constitution
B
(One Hundred and Twenty-third Amendment) Bill, 2017.”
375. With regard to the proposed Article 342A of the Constitution,
in paragraph 67 the Committee recorded the observation to the following
effect:
“67. The Committee observes that the amendments do not in any C
way affect the independence and functioning of State Backward
Classes Commissions’ and they will continue to exercise
unhindered their powers of inclusion/exclusion of other backward
classes with relation to State List.”
376. The Select Committee’s report came for consideration before D
the Rajya Sabha. During the debate, members have expressed their
apprehension regarding adversely affecting the rights of the State by the
proposed constitutional amendment. The Rajya Sabha passed the Bill on
31.07.2017 with amendment. Shri Thawarchand Gehlot, Minister of Social
Justice and Empowerment proposed the Bill. Several members expressed
their apprehension that Bill is not in the interest of the powers of the E
State. Shri B.K. Hari Prasad speaking on the Bill stated following:
“SHRI B.K. HARIPRASAD: Sir, repealing the Act of 1993
means that nothing would stay as it is and, again, the directions of
the Supreme Court are being negated. So, this Commission would
not help the Backward Classes and would take away the powers F
of the States too. They want to centralize all the powers, as they
have done in other cases. This cannot happen in the case of OBCS.
As I have already said, though the Act was passed in Parliament
way back in 1993 for purposes of employment, etc. and way back
in 2007 for education, nothing has been implemented so far. If G
they centralize all things like employment, identification of castes,
etc., they would be doing gross injustice to the OBCS. They should
think twice before scrapping the powers of the States because,
as I have already mentioned, it is the States which identify various
castes and communities. They know better than the people sitting
H
906 SUPREME COURT REPORTS [2021] 15 S.C.R.

A here in Delhi. Hence, amending Article 342 and equating
identification of OBC List to the SC/ST List should not be done.
...”
377. Shri Bhupender Yadav has also stated in his speech that
Amendment Bill cast threat to federalism and the State interest. In his
B statement (translated from Hindi) he said:
“......that this will be a big threat to the federalism of the
country and what will happen to the rights of the States? Here I
want to say that at least this subject should go before the House
and through the House to the country that about five and a half
C thousand castes and categories are under OBC in the Central
List of the country and about ten and a half thousand castes and
categories are under OBC in the States List. The work of their
identification (SIC) and the power that Parliament has, is for five
and a half thousand Central List only, the rights of the States will
be safe with them and therefore, they have done the work of
D strengthening the federal structure through this amendment. For
the first time, we have created the system that if the work of
filling up the OBC posts will not be done, then the report of the
OBC Commission will be placed before the Parliament. This
should be the demand of democracy of the country that if the
E lower class people do not get justice, then all those documents
should come before the Parliament with reasons. Provision to do
the same has been made in this OBC Commission.”
378. Shri Dilip Kumar Tirkey(Odisha), in his speech has referred
to State List and Central List and stated (translated from Hindi) that
F powers to identify OBC are remained with the State.
“Shri Dilip Kumar Tirkey (Odisha) :
Sir, you gave me an opportunity to speak on the very important
Amendment Bill, for this, I thank you. Sir, in our country, reservation
for OBC was given about 24 years ago but there is a clear
G provision in Article 14-15 of the Constitution that the States can
make special provision for the socio-economic backward classes.
Our party BJD is in support of National Commission to be made
for OBC and we are. supporting it but we have some issues and
concerns and I would like to present them before the House. Sir,
as per the present system, every State has its own OBC list and
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 907
& ANR. [ASHOK BHUSHAN, J.]

on that basis, they get reservation. If, in a State, any caste falls A
under OBC list then it is not mandatory that it falls under the
Central or other States list. The logic behind this is that there are
different castes in every state and these different castes have
different conditions. Now, after formation of the National
Commission, one Central list will be made and only Centre shall
B
notify them. Sir, this is the opinion of our party that the power of
notification of OBC castes should remain with the States only
because only the concerned state thoroughly knows the fact of
number of castes in their States and what is their condition. Only
the government knows thoroughly. They may face problems with
central list. Therefore, I would like to appeal to Hon’ble Minister C
and the House to add such a provision in the Bill whereby the
work of adding or deleting any caste from the OBC list should be
strictly done only on the recommendation of the state government
to which it relates to. Sir, you can make national list after the
uniformity comes gradually. When S.C., S.T, National Commission
D
was formed, it also took much time. In my opinion, after the
separate S.C., S.T. Commission was formed, it got the status of
Constitutional body in 2003. Therefore, 1 would like to appeal to
the House and the government to reconsider and think on this
point. Further, I would like to add one more thing that in the
observation of Hon’ble Supreme Court, there was a provision of E
review after every 10 years so that other castes are not left,
therefore, it should be reviewed after every 10 years. In my opinion,
do the needful keeping it in view also, thank you.”
379. Similar apprehension was expressed by T.K. Rangarajan
and Shri Pradeep Tamta that Article 342A takes away the existing powers F
of the State to notify list of SEBC. After the debate, the Bill was
presented and passed in Rajya Sabha.
380. The Minister, Shri Thawarchand Gehlot, after the debate
stated that apprehension expressed by the members that power of the
State shall be affected and federal structure shall be damaged is incorrect.
He stated that the power of the State shall not be affected in any manner, G
the State’s power to include and exclude in its list of OBC shall still
continue. The statement (translated from Hindi) made by the Minster is
to the following effect:
“Sir, 4 major amendments are being made in the Constitution;
one amendment pertains to part 10. of Article 338 wherein, OBC H
908 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Commission did not have power to hear grievances of the people
belonging to OBC category, that was to SC Commission, now this
power is being given to the upcoming OBC Commission. There is
provision of SC Commission under Article 338, provision of ST
Commission is under 338(A) and now provision of constituting
OBC Commission is being made under Article 338(B). SC
B
Commission and ST Commission already have Constitutional status
similarly, Constitutional status is being given to OBC Commission
as well. It simply means that the way rights, duties and power are
given to the SC and ST Commission, same rights have also been
given to them. Articles 341 and 342 provide for the inclusion and
C removal of the castes of the respective categories. Article 342
(A) also provides for inclusion and removal of the castes belonging
to OBC category by adopting the same procedure. Along with
this, various types of definitions are given in Article 366; castes
belonging to SC category are referred to in sub-clause 24 of it;
castes belonging to ST category are referred to in sub-clause 25
D
of it and now a new Article 26(C) is added to it. On the basis of it,
castes belonging to OBC category will be defined. Hon’ble
members were feared that the rights the State Commissions have
at present that might be reduced and the federal system will be
violated, pertaining to this I am to say that it will not at all happen.
E There is no provision anywhere in the Articles to reduce their
rights in any way. States have constituted OBC Commission in
their respective territories since long ago. When the Kaka Kalelkar
Committee was constituted and when it submitted its report, at
that time also many States had constituted such Commission. The
State List deals with work concerned with OBC category and
F
notifies them. Thereafter, on the basis of Mandal Commission
Report as well many States have constituted such Commissions.
Supreme Court had also given verdict in 1992-1993, on that ground
also many States had constituted OBC Commission in their
respective territories. At present as many as 30-31 States have
G constituted such Commissions. Complete list of it is with me. Right
to include or remove in the States List concerned with
OBCS will remain as it is and it will not be violated in any
manner.
In addition, keeping in view the sentiments of Article 15
and 16, States have also exercised their powers pertaining to
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 909
& ANR. [ASHOK BHUSHAN, J.]

making schemes in the interest of OBC category and making A
provisions in this behalf and such power will remain as it is. We
are not making any amendment in Article 15 and Article 16. It
simply means that State Commissions will not be affected in any
way by this Constitutional amendment. Maximum number of
Hon’ble Members have shared their views expressing their fear
B
on this point. I, sincerely want to make it clear that State
Governments have right and will remain as it is in future as well.
No attempt will be made to tamper with them.”
381. The Bill was passed in Rajya Sabhad on 31.07.2017 and
thereafter it was taken by the Lok Sabha on 02.08.2017. In Lok Sabha
the Minister of Social Justice and Empowerment again made a statement C
that the Commission will take decision related to the Central List It is
useful to extract the statement(translated from Hindi) of the Minister
made on 02.08.2017 which is to the following effect:
“Sh. Thawar Chand Gehlot
D
Madam, this Commission, which will be made, will make decisions
related to the Central List. As there is a common list related to
Scheduled Caste and Scheduled Tribe of the State and the Centre,
so is not the case here. In it, separate list is made for Centre as
well as for States. The task of making the list of States is done by
taking decision by the States Commission. E
If any State Government proposes to include any Caste of that
State in the Central List, then n this regard, this Commission will
give opinion, otherwise the opinion of this Commission is neither
binding regarding the State List nor the Commission will consider
it. According to my own belief, I assure you that the report of the F
Central Commission will not be binding on the subjects related to
the State, it contains such provisions. You be assured and support
this bill.”
382. The Lok Sabha also passed the Constitution 123rd Amendment
Bill, 2017 on 02.08.2018 which was agreed to by the Rajya Sabha on G
06.08.2018 and the Constitution (102nd Amendment) Act, 2018 after
receiving the assent of the President of India on 11.08.2018 was published
on 11.08.2018 and its enforcement has been notified with effect from
15.08.2018. The Constitution (102nd Amendment) Act inserted Article
338B and 342A and Article 366(26C) which are to the following effect:
H
910 SUPREME COURT REPORTS [2021] 15 S.C.R.

A “338B. (1) There shall be a Commission for the socially and
educationally backward classes to be known as the National
Commission for Backward Classes.
(2) Subject to the provisions of any law made in this behalf by
Parliament, the Commission shall consist of a Chairperson, Vice-
B Chairperson and three other Members and the conditions of service
and tenure of office of the Chairperson, Vice-Chairperson and
other Members so appointed shall be such as the President may
by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members
C of the Commission shall be appointed by the President by warrant
under his hand and seal.
(4) The Commission shall have the power to regulate its own
procedure.
(5) It shall be the duty of the Commission—
D
(a) to investigate and monitor all matters relating to the
safeguards provided for the socially and educationally
backward classes under this Constitution or under any
other law for the time being in force or under any order
of the Government and to evaluate the working of such
E safeguards;
(b) to inquire into specific complaints with respect to the
deprivation of rights and safeguards of the socially and
educationally backward classes;
(c) to participate and advise on the socio-economic
F
development of the socially and educationally backward
classes and to evaluate the progress of their development
under the Union and any State;
(d) to present to the President, annually and at such other
times as the Commission may deem fit, reports upon the
G working of those safeguards;
(e) to make in such reports the recommendations as to the
measures that should be taken by the Union or any State
for the effective implementation of those safeguards and
other measures for the protection, welfare and socio-
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 911
& ANR. [ASHOK BHUSHAN, J.]

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

(e) issuing commissions for the examination of witnesses
and documents;
(f) any other matter which the President may, by rule,
determine. H
912 SUPREME COURT REPORTS [2021] 15 S.C.R.

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

D “366(26C) “socially and educationally backward classes”
means such backward classes as are so deemed under article
342A for the purposes of this Constitution;’.”
383. After noticing the principles of statutory interpretation of
Constitution and aids which can be resorted to in case of any ambiguity
E in a word, we now proceed to look into the constitutional provisions
inserted by the Constitution (102nd Amendment) Act.
384. The first Article which has been inserted by the Constitution
(One Hundred and Second Amendment) Act is Article 338B. The
statement of objects and reasons of the Constitution (One Hundred and
F Twenty Third Amendment) Bill, 2017, we had noticed above, in which
one of the objects of the Constitutional amendment was: -
“...in order to safeguard the interests of the socially and
educationally backward classes more effectively, it is proposed to
create a National Commission for Backward Classes with
constitutional status at par with the National Commission for
G
Scheduled Castes and the National Commission for Scheduled
Tribes.
(Underlined by us)”
385. Prior to Constitution (One Hundred and Second Amendment),
H there was already existing a National Commission for Backward Classes
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 913
& ANR. [ASHOK BHUSHAN, J.]

under the National Commission for Backward Classes, Act, 1993(in short A
1993 Act), which was a statutory commission. To comprehend the role
and functions of the National Commission for Backward Class created
by the Constitution (One Hundred and Second Amendment) Act, we
need to notice the difference into the role and functions of the statutory
commission and Constitutional commission. Section 9 of 1993 Act
B
provided for the functions of the Commission, which is to the following
effect: -
“9. Functions of the Commission.–
(1) The Commission shall examine requests for inclusion
of any class of citizens as a backward class in the lists and hear C
complaints of over-inclusion or under-inclusion of any backward
class in such lists and tender such advice to the Central Government
as it deems appropriate.
(2) The advice of the Commission shall ordinarily be binding
upon the Central Government.” D
386. Section 11 provides for periodical revision of the list by the
Central government which is to the following effect:-
“11. Periodic revision of lists by the Central Government.–
(1) The Central Government may at any time, and shall, at
E
the expiration of ten years from the coming into force of this Act
and every succeeding period of ten years thereafter, undertake
revision of the lists with a view to excluding from such lists those
classes who have ceased to be backward classes or for including
in such lists new backward classes.
F
(2) The Central Government shall, while undertaking any
revision referred to in sub-section (1), consult the Commission. “
387. The Act, 1993, indicates that functions of the Commission
were confined to only examine requests for inclusion or exclusion from
the list of backward classes. The list “was defined in Section 2C of the
Act, 1993 to mean the list for reservation for appointment of backward G
class in the services under the Government of India. Article 338B now
inserted provides a much larger and comprehensive role to the
Commission. The Act, 1993 required the Commission to give advice
only to the Central Government. Article 338B now requires the
Commission to give advice both to the Central Government and to the H
914 SUPREME COURT REPORTS [2021] 15 S.C.R.

A States, which is clear from sub-clauses (5),(7) and (9) of Article 338B,
which is quoted as below:-
“(5) It shall be the duty of the Commission—
(a) to investigate and monitor all matters relating to the
safeguards provided for the socially and educationally backward
B classes under this Constitution or under any other law for the
time being in force or under any order of the Government and
to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the
deprivation of rights and safeguards of the socially and
C educationally backward classes;
(c) to participate and advise on the socio-economic development
of the socially and educationally backward classes and to
evaluate the progress of their development under the Union
and any State;
D
(d) to present to the President, annually and at such other times
as the Commission may deem fit, reports upon the working of
those safeguards;
(e) to make in such reports the recommendations as to the
measures that should be taken by the Union or any State for
E
the effective implementation of those safeguards and other
measures for the protection, welfare and socio-economic
development of the socially and educationally backward classes;
and
(f ) to discharge such other functions in relation to the protection,
F
welfare and development and advancement of the socially and
educationally backward classes as the President may, subject
to the provisions of any law made by Parliament, by rule specify.
(7) Where any such report, or any part thereof, relates to any
matter with which any State Government is concerned, a copy of
G such report shall be forwarded to the State Government which
shall cause it to be laid before the Legislature of the State along
with a memorandum explaining the action taken or proposed to
be taken on the recommendations relating to the State and the
reasons for the non-acceptance, if any, of any of such
H recommendations.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 915
& ANR. [ASHOK BHUSHAN, J.]

(9) The Union and every State Government shall consult the A
Commission on all major policy matters affecting the socially and
educationally backward classes.”
388. 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 B
and educationally backward classes. Sub-clause (9) is engrafted in
mandatory form by using expression “shall”. The States thus are now
bound to consult the Commission on all major policy matters affecting
socially and educationally backward class. For the purposes of this case,
we need not elaborate on the expression “policy matter” occurring in
sub-clause (9) of Article 338B. However, in the facts of the present C
case, the decision of the Maharashtra Government which culminated in
2018 Act to exceed ceiling limit of 50 percent fixed for reservation as
per existing law and to give separate reservation to Maratha in
employment under State and in educational institutions of the State where
all policy decisions within the meaning of clause (9) of Article 338B. D
389. The word ‘consultation’ occurring in sub-clause (9) is
expression which has been used in several Articles of the Constitution
i.e. Article 124, 207, 233, 234, 320 and host of other articles. We may
notice the content and meaning of the expression ‘consultation’.
390. The Black’s Law Dictionary, 10 th Edition, defines E
‘consultation’ as follows:-
“Consultation, n.(15c) 1. The act of asking the advice or
opinion of someone(such as a lawyer). 2. A meeting in which
parties consult or confer. 3. Int’l law. The interactive methods by
which states seek to prevent or resolve disputes.- consult, vb.- F
consulting, consultative, adj.”
Advanced Law Lexicon by P.Ramanatha Aiyar, 3rd Edition,
defines ‘consult’:
“Consult. ‘Consult implies a conference of two or more
persons or the impact of two or more minds brought about in G
respect of a topic with a view to evolve a correct or atleast a
satisfactory solution. It must be directed to the essential points of
the subject under discussion and enable the consultor to consider
the pros and cons before coming to a decision. The consultation
H
916 SUPREME COURT REPORTS [2021] 15 S.C.R.

A may be between an uninformed person and an expert or between
two experts.”
391. The ‘consultation’ or deliberation is not complete or effective
unless parties there to makes their respective points of view known to
the others and examine the relative merit of their view. The consultation
B is a process which requires meeting of minds between the parties involves
in the process of consultation on the material facts and points involved.
The consultation has to be meaningful, effective and conscious
consultation. We may now notice few cases of this Court where the
expression ‘consultation’ as occurring in the Constitution of India has
been dealt with.
C
392. In Chandramouleshwar Prasad versus The Patna High
Court and others, (1969) 3 SCC 56, this Court had occasion to consider
the expression ‘consultation’ as occurring in Article 233 of the
Constitution. The Constitution Bench of this Court explaining the
expression ‘consultation’ held that ‘consultation’ is not an empty formality
D and it should be complete and effective. Following has been laid down in
paragraph 7 of the judgment: -
“7. ...Consultation with the high Court under Article 233 is
not an empty formality. So far as promotion of officers to the
cadre of District Judges is concerned the High Court is best fitted
E to adjudge the claims and merits of persons to be considered for
promotion. The Governor cannot discharge his function under
Article 233 if he makes an appointment of a person without
ascertaining the High Court’s views in regard thereto...
...Consultation or deliberation is not complete or effective
F before the parties thereto make their respective points of view
known to the other or others and discuss and examine the relative
merits of their views. If one party makes a proposal to the other
who has a counter proposal in his mind which is not communicated
to the proposer the direction to give effect to the counter proposal
without anything more, cannot be said to have been issued after
G consultation. In our opinion, the notification of October 17, 1968
was not in compliance with Article 233 of the Constitution. In the
absence of consultation the validity of the notification of October
17, 1968 cannot be sustained.”
393. In Union of India versus Shankalchand Himatlal Sheth
H and another, (1977) 4 SCC 193, the Constitution Bench of this Court
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 917
& ANR. [ASHOK BHUSHAN, J.]

had occasion to examine Article 222 and the expression ‘consult’. A
Explaining the word ‘consult’, Justice Y.V. Chandrachud, in paragraphs
38 and 39 laid down following: -
“38. In Words and Phrases (Permanent Edition, 1960,
Volume 9, page 3) to ‘consult’ is defined as ‘to discuss something
together, to deliberate’. Corpus Juris Secundum (Volume 16A, B
Ed. 1956, page 1242) also says that the word ‘consult’ is frequently
defined as meaning ‘to discuss something together, or to deliberate’.
Quoting Rollo v. Minister of Town and Country Planning(1) and
Fletcher v. Minister of Town and Country Planning(2) Stroud’s
Judicial Dictionary (Volume 1' Third Edition, 1952, page 596) says
in the context of the expression “ consultation with any local C
authorities” that “Consultation means that, on the one side, the
Minister must supply sufficient information to the local authority
to enable them to tender advice, and, on the other hand, a sufficient
opportunity must be given to the local authority to tender advice”.
Thus, deliberation is the quintessence of consultation. That implies D
that each individual case must be considered separately on the
basis of its own facts. Policy transfers on a wholesale basis which
leave no scope for considering the facts of each particular case
and which are influenced by one-sided governmental
considerations are outside the contemplation of our Constitution.
E
39. It may not be a happy analogy, but it is commonsense
that he who wants to ‘consult’ a doctor cannot keep facts up his
sleeve. He does so at his peril for he can receive no true advice
unless he discloses facts necessary for diagnosis of his malady.
Homely analogies apart, which can be multiplied, a decision of
the Madras High Court in R. Pushpam & Anr. v. Stale of F
Madras(1) furnishes a good parallel. section 43(b), Madras District
Municipalities Act, 1920, provided that for the purpose of election
of Councillors to a Municipal Council, the Local Government ‘after
consulting the Municipal Council’ may determine the wards in
which reserved seats shall be set apart. While setting aside the G
reservation made in respect of one of the wards on the ground
that the Local Government had failed to discharge its statutory
obligation of consulting the Municipal Council, Justice K. Subba
Rao, who then adorned the Bench of the Madras High Court,
observed : “The word ‘consult’ implies a conference of two or
H
918 SUPREME COURT REPORTS [2021] 15 S.C.R.

A more persons or an impact of two or more minds in respect of a
topic in order to enable them to evolve a correct, or at least, a
satisfactory solution.” In, order that the two minds may be able to
confer and produce a mutual impact, it is essential that each must
have for its consideration full and identical facts, which can at
once constitute both the source and foundation of the final
B
decision.”
394. In IndianAdministrative Services (S.C.S.) Association,
U.P. and Others,(1993) Supp.(1) SCC 730, this Court had occasion
to explain the expression ‘consultation’ as occurring in All India Services
Act, 1951. In paragraph 26, following conclusions were recorded by this
C Court:-
“26.(1) Consultation is a process which requires meeting
of minds between the parties involved in the process of consultation
on the material facts and points involved to evolve a correct or at
least satisfactory solution. There should be meeting of minds
D between the proposer and the persons to be consulted on the
subject of consultation. There must be definite facts which
constitute the foundation and source for final decision. The object
of the consultation is to render consultation meaningful to serve
the intended purpose. Prior consultation in that behalf is mandatory.
E ... ... ... ...”
395. The word ‘consultation’ as occurring in Articles 124, 216,
217 and 222 came for consideration before the Constitution Bench of
this Court in Supreme Court Advocates on Record Association and
others versus Union of India, (1993) 4 SCC 441. Justice Ratnavel
F Pandian delivering a concurring opinion has elaborately dealt with the
consultation. In paragraph 112, following has been stated: -
“112. It is clear that under Article 217(1), the process of
‘consultation’ by the President is mandatory and this clause does
not speak of any discretionary ‘consultation’ with any other
G authority as in the case of appointment of a Judge of the Supreme
Court as envisaged in Clause (2) of Article 124. The word
‘consultation’ is powerful and eloquent with meaning, loaded with
undefined intonation and it answers all the questions and all the
various tests including the test of primacy to the opinion of the
CJI. This test poses many tough questions, one of them being,
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 919
& ANR. [ASHOK BHUSHAN, J.]

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

397. It is true that the expression ‘consultation’ in sub-clause (4)
of Article 338B is not to be read as concurrence but as held above,
‘consultation’ has to be effective and meaningful. The object of
consultation is that ‘consultee’ shall place the relevant material before
person from whom ‘consultation’ is asked for and advice and opinion F
given by consulting authority shall guide the authority who has asked for
consultation.
398. 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 G
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.
399. The appellants insist that Article 342A has to be given a
literal interpretation. The plain language of an Article has to be given full H
920 SUPREME COURT REPORTS [2021] 15 S.C.R.

A effect irrespective of intention of Parliament as claimed by the Attorney
General as well the learned counsel for the State. The submission of the
appellants is that Article 342A borrows the same scheme as is delineated
in Articles 341 and 342 of the Constitution. It is submitted that when
Article 342A borrows the same scheme which is clear from the fact
that sub-clause (1) of Article 342A is para mataria with Articles 341(1)
B
and 342(1), it is clearly meant that power to identify educationally and
socially backward classes is only with the President but after consultation
with the Governor of the State. It is submitted that expression the “socially
and educationally backward classes” which shall for the purposes of
this Constitution be deemed to be socially and educationally backward
C 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
D
expression “Central List” in sub-clause (2) is only to refer the list specified
by the notification in sub-clause (1) of Article 342A and expression Central
List has been used in the above context.
400. Elaborating the argument, it is further contended that the
definition given in the Article 366(26C) which provides that socially and
E educationally backward classes means such backward classes as are
so deemed under Article 342A for the purposes of this Constitution, the
use of the expression “for the purposes of this Constitution” clearly means
that it is for Articles 15 and 16 also, the list which is referred to under
Article 342A has to be utilised. The definition under Article 366(26C)
F does not contemplate any other list apart from list under Article 342A.
401. In contra with above interpretation put by the petitioner,
learned Attorney General and learned counsel for the State submit that
the Constitutional provision is to be interpreted as per the intention of the
Parliament and Parliament having never intended to take away the power
G of the State to identify backward classes in the State for the purpose of
employment in the State, Article 342A cannot be read in a manner as
claimed by the appellants. The use of expression “Central List” under
sub-clause (2) of Article 342A is decisive since the Parliament clearly
intended to confine the list as contemplated by Article 342A(1) as a
Central List for the purposes of employment in the Central Government
H services and Central Government organisations.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 921
& ANR. [ASHOK BHUSHAN, J.]

402. Primarily the language employed in a statute and the A
Constitutional provision is determinative factor of legislative intention.
The legislative intention opens two clues. Firstly, meaning of the word in
the provision and secondly, the purpose and object pervading through
the statutes. It is well settled that primary rule of construction is that the
intention of the legislation must be found in the words used by the
B
Legislature itself. This Court apart from the above well settled principles
of statutory interpretation has laid down some further rules of
interpretation to interpret the constitutional provision. We may profitably
refer to a Constitution Bench judgment of this Court in State (NCT) of
Delhi vs. Union of India and another, 2018(8) SCC 501. The
Constitution Bench in the above case had occasion to interpret the C
Constitutional provision of Article 239AA which was inserted by
Constitution (Sixty Ninth Amendment) Act, 1991. The Constitution Bench
of this Court interpreted Article 239-AA by referring to principles of the
constitutional objectivity, federal functionalism, democracy and pragmatic
federalism. Justice Dipak Misra, CJ, speaking for himself, A.K. Sikri
D
and A.M. Khanwilkar, JJ., laid down that although, primarily, it is a literal
rule which is considered to be the norm while interpreting statutory and
constitutional provisions, yet mere allegiance to the dictionary or literal
meaning of words contained in the provisions, sometimes, does not serve
the purpose of a living document. In paragraph 135 following was laid
down: E
“135. The task of interpreting an instrument as dynamic
as the Constitution assumes great import in a democracy. The
constitutional courts are entrusted with the critical task of
expounding the provisions of the Constitution and further while
carrying out this essential function, they are duty-bound to ensure F
and preserve the rights and liberties of the citizens without
disturbing the very fundamental principles which form the
foundational base of the Constitution. Although, primarily, it is the
literal rule which is considered to be the norm which governs the
courts of law while interpreting statutory and constitutional
provisions, yet mere allegiance to the dictionary or literal meaning G
of words contained in the provision may, sometimes, annihilate
the quality of poignant flexibility and requisite societal progressive
adjustability. Such an approach may not eventually subserve the
purpose of a living document.”
H
922 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 403. The Constitution Bench further observed that a theory of
purposive interpretation has gained importance where the Courts shall
interpret the Constitution in the purposive manner so as to give effect to
its intention. In paragraphs 149, 150, 155 and 156 following was laid
down:
B “149. Having stated the principles relating to constitutional
interpretation we, as presently advised, think it apt to devote some
space to purposive interpretation in the context, for we shall refer
to the said facet for understanding the core controversy. It needs
no special emphasis that the reference to some precedents has to
be in juxtaposition with other concepts and principles. As it can be
C gathered from the discussion as well as the authorities cited above,
the literal rule is not to be the primary guiding factor in interpreting
a constitutional provision, especially if the resultant outcome would
not serve the fructification of the rights and values expressed in
the Constitution. In this scenario, the theory of purposive
D interpretation has gained importance where the courts shall
interpret the Constitution in a purposive manner so as to give effect
to its true intention. The Judicial Committee in Attorney General
of Trinidad and Tobago v. Whiteman [Attorney General of
Trinidad and Tobago v. Whiteman, (1991) 2 AC 240 : (1991) 2
WLR 1200 (PC)] has observed: (AC p. 247)
E
“The language of a Constitution falls to be construed,
not in a narrow and legalistic way, but broadly and purposively,
so as to give effect to its spirit.…”
150. In S.R. Chaudhuri v. State of Punjab [S.R.
Chaudhuri v. State of Punjab, (2001) 7 SCC 126] , a three-
F Judge Bench has opined that constitutional provisions are required
to be understood and interpreted with an object-oriented approach
and a Constitution must not be construed in a narrow and pedantic
sense. The Court, while holding that the Constituent Assembly
Debates can be taken aid of, observed the following: (SCC p.
G 142, para 33)
“33. … The words used may be general in terms but,
their full import and true meaning, has to be appreciated
considering the true context in which the same are used
and the purpose which they seek to achieve.”
H (emphasis supplied)
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 923
& ANR. [ASHOK BHUSHAN, J.]

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

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

156. Emphasising on the importance of determining the
purpose and object of a provision, Learned Hand, J.
in Cabell v. Markham [Cabell v. Markham, 148 F 2d 737 (2d
Cir 1945)] enunciated:
F
“Of course it is true that the words used, even in their literal
sense, are the primary, and ordinarily the most reliable, source of
interpreting the meaning of any writing: be it a statute, a contract,
or anything else. But it is one of the surest indexes of a mature
and developed jurisprudence not to make a fortress out of the
dictionary; but to remember that statutes always have some G
purpose or object to accomplish, whose sympathetic and
imaginative discovery is the surest guide to their meaning.”
404. The shift from literal rule to purposive and objective
interpretation of a constitutional document is adopted since the
Constitution is not to be interpreted in static and rigid manner, the H
924 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Constitution is an organic and living document which needs to be
interpreted with cardinal principals and objectives of the Constitution.
The shift from literal to purposive method of interpretation has been
now more and more, being adopted for interpreting a constitutional
document. The Constitution Bench in State (NCT of Delhi) case (supra)
has also noticed one more principle which is to be applied for interpretation
B
of a constitutional document that is constitutional culture and pragmatism.
In paragraphs 165, 166 and 169 following was held:
“165. The constitutional courts, while interpreting the
constitutional provisions, have to take into account the constitutional
culture, bearing in mind its flexible and evolving nature, so that the
C provisions are given a meaning which reflect the object and purpose
of the Constitution.
166. History reveals that in order to promote and nurture
this spirit of constitutional culture, the courts have adopted a
pragmatic approach of interpretation which has ushered in an era
D of “constitutional pragmatism”.
169. Further, the Court also highlighted that a balance
between idealism and pragmatism is inevitable in order to create
a workable situation ruling out any absurdity that may arise while
adopting either one of the approaches: (Supreme Court
E Advocates-on-Record Assn. case [Supreme Court Advocates-
on-Record Assn. v. Union of India, (2016) 5 SCC 1] , SCC pp.
320-31 & 611, paras 145 & 766)
“145. … ‘468. The rule of law envisages the area of
discretion to be the minimum, requiring only the application of
F known principles or guidelines to ensure non-arbitrariness, but to
that limited extent, discretion is a pragmatic need. Conferring
discretion upon high functionaries and, whenever feasible,
introducing the element of plurality by requiring a collective
decision, are further checks against arbitrariness. This is how
G idealism and pragmatism are reconciled and
Integrated to make the system workable in a satisfactory
manner.’ [Ed.: As observed in Supreme Court Advocates-on-
Record Assn. v. Union of India, (1993) 4 SCC 441, p. 699, para
468.]
H * * *
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 925
& ANR. [ASHOK BHUSHAN, J.]

766. It is this pragmatic interpretation of the Constitution A
that was postulated by the Constituent Assembly, which did
not feel the necessity of filling up every detail in the document,
as indeed it was not possible to do so.””
405. Justice Dipak Misra in the Constitution Bench further laid
down in paragraph 284.11: B
“284.11. In the light of the contemporary issues, the
purposive method has gained importance over the literal approach
and the constitutional courts, with the vision to realise the true and
ultimate purpose of the Constitution not only in letter but also in
spirit and armed with the tools of ingenuity and creativity, must C
not shy away from performing this foremost duty to achieve
constitutional functionalism by adopting a pragmatic approach. It
is, in a way, exposition of judicial sensibility to the functionalism of
the Constitution which we call constitutional pragmatism. The spirit
and conscience of the Constitution should not be lost in grammar
and the popular will of the people which has its legitimacy in a D
democratic set-up cannot be allowed to lose its purpose in simple
semantics.”
406. In the above judgment the Constitution Bench laid down that
the purposive method has gained importance over the literal approach.
One of us (Justice Ashok Bhushan) while delivering a concurring judgment E
in the Constitution Bench judgment of State (NCT of Delhi) (supra)
has also laid down that the Constitutional interpretation has to be purposive
taking into consideration the need of time and constitutional principles. It
was further held that the intent of Constitution Framers and object and
purpose of Constitutional amendment always throw light on the F
Constitutional provisions. Following was laid down in paragraph 537:
“537. From the above discussions, it is apparent that
constitutional interpretation has to be purposive taking into
consideration the need of time and constitutional principles. The
intent of Constitution Framers and object and purpose of
G
constitutional amendment always throw light on the constitutional
provisions but for interpreting a particular constitutional provision,
the constitutional scheme and the express language employed
cannot be given a go-by. The purpose and intent of the
constitutional provisions have to be found from the very
H
926 SUPREME COURT REPORTS [2021] 15 S.C.R.

A constitutional provisions which are up for interpretation. We, thus,
while interpreting Article 239-AA have to keep in mind the purpose
and object for which the Sixty-ninth Constitution (Amendment)
Act, 1991 was brought into force. After noticing the above
principles, we now proceed further to examine the nature and
content of the constitutional provisions.”
B
407. We may also notice a seven-Judge Bench judgment of this
Court on principles of interpretation of Constitution. In Abhiram Singh
vs. C.C. Commachen (Dead) By Legal Representatives and
others, (2017) 2 SCC 629, Justice Madan B. Lokur, with whom Justice
T.S. Thakur, CJ and Justice S.A. Bobde, concurred noticed the conflict
C between a literal interpretation or purposive interpretation. It was held
that interpretation has, therefore, to consider not only the context of the
law but the context in which the law is enacted. Justice Lokur extracted
Bennion on Statutory Interpretation in paragraph 38 to the following
effect:
D “38. In Bennion on Statutory Interpretation[6th Edn. (Indian
Reprint) p. 847] it is said that:
“General judicial adoption of the term “purposive construction” is
recent, but the concept is not new. Viscount Dilhorne, citing Coke,
said that while it is now fashionable to talk of a purposive
construction of a statute the need for such a construction
E has been recognized since the seventeenth century.
[Stock v. Frank Jones (Tipton) Ltd., (1978) 1 WLR 231 at p.
234] In fact the recognition goes considerable further back than
that. The difficulties over statutory interpretation belong to the
language, and there is unlikely to be anything very novel or recent
F about their solution … Little has changed over problems of verbal
meaning since the Barons of the Exchequer arrived at their famous
resolution in Heydon case [Heydon Case, (1584) 3 Co Rep 7a :
76 ER 637] . Legislation is still about remedying what is thought
to be a defect in the law. Even the most “progressive” legislator,
concerned to implement some wholly normal concept of social
G justice, would be constrained to admit that if the existing law
accommodated the notion there would be no need to change it.
No legal need that is ….”
408. Approving the purposive construction the Court also held
that a pragmatic view is required to be taken and the law interpreted
H purposefully. In paragraph 39 following was observed:
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 927
& ANR. [ASHOK BHUSHAN, J.]

“39. We see no reason to take a different view. Ordinarily, A
if a statute is well drafted and debated in Parliament there is little
or no need to adopt any interpretation other than a literal
interpretation of the statute. However, in a welfare State like ours,
what is intended for the benefit of the people is not fully reflected
in the text of a statute. In such legislations, a pragmatic view is
B
required to be taken and the law interpreted purposefully and
realistically so that the benefit reaches the masses. …”
409. Justice T.S. Thakur delivering his concurring opinion in
paragraph 74 held that an interpretation which has the effect of diluting
the constitutional objective should be avoided and the purpose of the
constitution be kept in mind. In paragraphs 74, 76 and 77 following was C
observed:
“74. The upshot of the above discussion clearly is that under
the constitutional scheme mixing religion with State power is not
permissible while freedom to practice, profess and propagate
religion of one’s choice is guaranteed. The State being secular in D
character will not identify itself with any one of the religions or
religious denominations. This necessarily implies that religion will
not play any role in the governance of the country which must at
all times be secular in nature. The elections to the State Legislature
or to Parliament or for that matter or any other body in the State
is a secular exercise just as the functions of the elected E
representatives must be secular in both outlook and practice.
Suffice it to say that the constitutional ethos forbids mixing of
religions or religious considerations with the secular functions of
the State. This necessarily implies that interpretation of any statute
must not offend the fundamental mandate under the Constitution. F
An interpretation which has the effect of eroding or diluting the
constitutional objective of keeping the State and its activities free
from religious considerations, therefore, must be avoided. This
Court has in several pronouncements ruled that while interpreting
an enactment, the Courts should remain cognizant of the
constitutional goals and the purpose of the Act and interpret the G
provisions accordingly.
76. Extending the above principle further one can say that
if two constructions of a statute were possible, one that promotes
the constitutional objective ought to be preferred over the other
that does not do so. H
928 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 77. To somewhat similar effect is the decision of this Court
in State of Karnataka v. Appa Balu Ingale [State of
Karnataka v. Appa Balu Ingale, 1995 Supp (4) SCC 469 : 1994
SCC (Cri) 1762] wherein this Court held that as the vehicle of
transforming the nation’s life, the Court should respond to the
nation’s need and interpret the law with pragmatism to further
B
public welfare and to make the constitutional animations a reality.
The Court held that Judges should be cognizant of the constitutional
goals and remind themselves of the purpose of the Act while
interpreting any legislation. The Court said: (SCC p. 486, para 35)
“35. The Judges, therefore, should respond to the human
C situations to meet the felt necessities of the time and social
needs, make meaningful the right to life and give effect to the
Constitution and the will of the legislature. This Court as the
vehicle of transforming the nation’s life should respond to the
nation’s needs and interpret the law with pragmatism to further
D public welfare to make the constitutional animations a reality.
Common sense has always served in the court’s ceaseless
striving as a voice of reason to maintain the blend of change
and continuity of order which is sine qua non for stability in the
process of change in a parliamentary democracy. In
interpreting the Act, the Judge should be cognizant to and always
E keep at the back of his/her mind the constitutional goals and
the purpose of the Act and interpret the provisions of the Act
in the light thus shed to annihilate untouchability; to accord to
the Dalits and the Tribes right to equality; give social integration
a fruition and make fraternity a reality.””
F 410. Applying the above principles laid down by the Constitution
Benches of this Court on interpretation of a Constitution, in the fact of
the present case, we need to discern the intention of Parliament in inserting
Article 342A. We have already found that reports of the Parliamentary
Committee and the statement made by the Minister while moving the
G Bill are relevant aids for a construction of constitutional provision. The
Parliamentary Committee report makes it clear that after obtaining the
clarification from the Ministry that the Constitutional Amendment is not
intended to take away the right of identification of backward class from
a State. It submitted its report to the effect that rights of State Backward
Classes Commission shall continue unhindered. The Parliamentary
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 929
& ANR. [ASHOK BHUSHAN, J.]

Standing Committee further noticed that the list which is contemplated A
under Article 342A is only Central List of the backward classes for a
particular State for the purposes of services under the Government of
India and its organizations.
411. We have further noticed the statement of Minister of Social,
Justice and Empowerment, made both in Rajya Sabha and Lok Sabha. B
The Minister stated the task of preparing list of the State of the
Backward Classesis taken by the State Commission and the
amendment shall have no effect on the right of the State and State
Backward Classes Commission to identify the backward classes.
We have extracted above the relevant statement of Minister in the
foregoing paragraphs. C

412. We may further notice that the above statement was made
by the Minister of Social Justice and Empowerment in the background
of several members of the Parliament expressing their apprehension
that the Constitution 102nd Amendment shall take away rights of the
States to identify backward classes in each State. The Minister of Social D
Justice and Empowerment for allaying their apprehension made a
categorical statement that the Constitutional Amendment shall not affect
the power of the State, the State Backward Classes Commission to
identify the backward classes in the State.
413. Learned Attorney General for India in his submission has E
referred to the statement of Minister of Social Justice and Empowerment
as well as Parliamentary Select Committee report and has emphasised
that the Parliamentary intention was never to take away the rights of the
States to identify backward classes in their respective States. Learned
Attorney General has referred to and relied on the Union’s stand taken F
in Writ Petition (C) No.12 of 2021-Dinesh B. vs. Union of India & Ors.,
where the stand of the Union on the Constitution (102nd Amendment)
Act, 2018 was made clear in paragraph 11. We extract paragraph 11 of
the above affidavit relied by the learned Attorney General which is to
the following effect:
G
“11. That, from the above, it is evident that the power to identify
and specify the SEBCs lies with Parliament, only with reference
to the Central List of SEBCs. The State Governments may have
their separate State Lists of SEBCs for the purpose of providing
reservation in recruitment to State Government services or
H
930 SUPREME COURT REPORTS [2021] 15 S.C.R.

A admission in State Government educational institutions. The castes/
communities included in such State Lists of SEBCs may differ
from the castes/communities included in the Central List of SEBCs.
It is submitted that the inclusion or exclusion of any caste or
community in the State List of SEBCs is the subject of the
concerned State Government and the Government of India has
B
no role in the matter.”
414. It is, thus, clear as sun light that Parliamentary intention
discernible from Select Committee report and statement of Ministry of
Social Justice and Empowerment is that the intention of the Parliament
for bringing Constitutional amendment was not to take away the power
C of the State to identify backward class in the State.
415. The Parliamentary intention was further discernible that the
list which was contemplated to be issued by President under Article
342A was only the Central List which was to govern the services under
the Government of India and organisations under the Government of
D India. When the Parliamentary intention is discernable and admissible
as aid to statutory interpretation, we see no reason not to interpret Article
342A in manner as per the intention of the Parliament noticed above.
416. We also need to reflect on the submission of petitioner that
the scheme under Article 342A has to be interpreted in accordance with
E already existing scheme under Articles 341 and 342. There is no doubt
that the Constitutional scheme under Article 342A (1) and those of Article
341(1) and 342(1) are same but there is a vast difference between the
list of SC and ST as contemplated by Articles 341 and 342 of those of
backward classes which now is contemplated under Article 342A.
F 417. The concept of Scheduled Castes was well known even
before the enforcement of the Constitution. There was already Scheduled
Castes list in existence when the Constitution was enforced. We may
refer to Government of India Act, 1935, Schedule (1), paragraph 26
which defines the Scheduled Castes in the following words:
G “26.-(1) In the foregoing provisions of this Schedule the
following expressions have the meanings hereby assigned to them,
that is to say:-
“…… …… …

H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 931
& ANR. [ASHOK BHUSHAN, J.]

“the scheduled castes” means such castes, races or tribes A
or parts of or groups within castes, races or tribes, being castes,
races, tribes, parts or groups which appear to His Majesty in Council
to correspond to the classes of persons formerly known as “the
depressed classes”, as His Majesty in Council may specify; and…”
418. The Government of India has also issued a Scheduled Castes B
List under the Government of India Scheduled Castes Order 1936. The
Constitution framers were, thus, well aware with the concept of
Scheduled Castes and Scheduled Tribes and hence the same scheme
regarding SC was continued in the Constitution by way of Article 341 of
the Constitution.
C
419. The expression ‘backward class’ does not find place in the
Government of India Act, 1935. The Constitution framers recognising
that backward classes of citizens need affirmative action by the State to
bring them in the main stream of the society has engrafted a special
provision for backward classes. Under Article 16(4) the State was
empowered to make any provision for reservation of appointment or D
posts in favour of any backward class of citizens not adequately
represented in services. When the Constitution empowers the State to
make any provision, the provision may embrace all aspects of measures
including identification of the backward classes. The Constitution Bench
of this Court in Indra Sawhney has accepted and recognised this position. E
It is both the States and Union who are entitled to identify backward
classes of citizens and to take measures. Indra Sawhney had, thus,
issued directions to Union as well as States to constitute permanent
body for identification and for taking necessary measures. The power to
identify the backward classes was with the State and there are no
intentions that the power of the State as occurring in Articles 15(4) and F
16(4) in any manner has been taken away by the Constitutional
amendment. The power given to the State under Articles 15(4) and 16(4)
are for the benefit of backward classes of citizens. Any limitation or
limitation of such power cannot be readily inferred and has to be expressly
provided by the Constitution. The submission of the petitioner that Article G
342A which relates to socially and educationally backward class should
be read in the Constitutional scheme as delineated under Articles 341
and 342, thus, cannot be accepted.
420. Now, we come to the expression “Central List” as occurring
in Article 342A (2). In pursuance of the direction issued by the Constitution H
932 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Bench of this Court in Indra Sawhney, the Parliament has enacted the
National Commission for Backward Classes Act, 1993. Section 2(c) of
the Act defines ‘lists’ in the following words:
“Section 2(c) “lists” means lists prepared by the Government
of India from time to time for purposes of making provision for
B the reservation of appointments or posts in favour of backward
classes of citizens which, in the opinion of that Government, are
not adequately represented in the services under the Government
of India and any local or other authority within the territory of
India or under the control of the Government of India;”
C 421. Section 9 of the Act defines the functions of the Commission.
Section 9 provides as follows:
“9. Functions of the Commission.–(1) The Commission shall
examine requests for inclusion of any class of citizens as a
backward class in the lists and hear complaints of over-inclusion
D or under-inclusion of any backward class in such lists and tender
such advice to the Central Government as it deems appropriate.
(2) The advice of the Commission shall ordinarily be binding upon
the Central Government.”
422. The National Commission for Backward Classes Act, 1993
E clearly indicates that the Parliamentary enactment was related to services
under the Government of India and the Act, 1993 was not to govern or
regulate identification of backward classes by the concerned State. The
States had also enacted “State Legislation” constituting Backward Classes
Commission. In the State of Maharashtra, Maharashtra State Backward
F Classes Commission, Act was enacted in 2005. Along with passing of
the Constitution 102nd Amendment, the National Commission for
Backward Classes (Repeal) Act, 2018 was passed which received the
assent of the President of India on 14.08.2018. We may notice Section 2
of the Repeal Act which is to the following effect:
“Section 2.(1) The National Commission for Backward Classes
G
Act, 1993 is hereby repealed and the National Commission for
Backward Classes constituted under sub-section (1) of section 3
of the said Act shall stand dissolved.
(2) The repeal of the National Commission for Backward
Classes Act, 1993 shall, however, not effect,—
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 933
& ANR. [ASHOK BHUSHAN, J.]

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

(iv) any proceedings or remedy in respect of any such right,
privilege, obligation, liability, penalty, confiscation or punishment
as aforesaid, and any such proceeding or remedy may be instituted,
continued or enforced, and any such penalty, confiscation or
punishment may be imposed or made as if that Act had not been C
repealed.
(3)... … … …”
423. The National Commission for Backward Classes by the
Constitutional 102nd Amendment was, thus, given constitutional status D
which was available to the Commission which as a statutory Commission
under 1993 enactment.
The Parliamentary Select Committee report dated 17.07.2017 and
the Minutes of the Parliamentary Standing Committee as referred to
and extracted above indicates that it was well known that there are two
E
lists of Backward Classes, one “Central List” and other “State List”.
During the Parliamentary Committee report it was clarified and expressed
that Constitutional amendment is only with regard to “Central List” which
expression was expressly included in sub-clause (2) of Article 342A.
424. We may also look into the use of expression “Central List”
F
under Article 342A in contradiction to the words, “list of Scheduled
Castes”, “list of Scheduled Tribes” as occurring in Articles 341(2) and
342(2) which are to following effect:
“341.Scheduled Castes. -(1) The President may with
respect to any State or Union territory, and where it is a State ,
after consultation with the Governor thereof, by public notification, G
specify the castes, races or tribes or parts of or groups within
castes, races or tribes which shall for the purposes of this
Constitution be deemed to be Scheduled Castes in relation to that
State or Union territory, as the case may be.
H
934 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 342. Scheduled Tribes.-(1)The President may with
respect to any State or Union territory, and where it is a State,
after consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups within
tribes or tribal communities which shall for the purposes of this
Constitution be deemed to be Scheduled Tribes in relation to that
B
State or Union territory, as the case may be.”
425. Article 341(1) uses expression ‘Scheduled Castes’ and the
same expression finds place in sub-clause (2) when the sub-clause (2)
of the Article uses expression “list of Scheduled Castes” specified in
notification. Similarly, Article 342(2) also uses expression ‘list of
C Scheduled Tribes’ specified in the notification.
426. Article 342A(2) uses an extra word “Central” before the
expression ‘List’ of socially and educationally backward classes. If it is
to be accepted that the constitutional scheme of Articles 341 and 342
was to be followed and carried in Article 342A also, the same expression,
D which was necessary to be used i.e. “list of socially and educationally
backward classes” which use would have been in line of the expression
occurring in Article 341(2) and 342(2). It is, thus, clear that an extra
word, namely, ‘Central’ has been added in Article 342(2) before the
expression ‘list of socially and educationally backward classes’. When
E the statute or Constitution uses an additional word it has to be presumed
that the use of additional word is for a purpose and object and it is not
superfluous or redundant.
427. While interpreting a constitutional provision, no word shall be
treated as superfluous and redundant. We have noticed above that the
F list for services in the Government of India was Central List which was
being prepared prior to the Constitution Amendment, under Act, 1993.
428. We may also deal with the submission of the petitioner that
the word ‘Central List’ was used in sub-clause (2) of Article 342A to
refer the public notification specifying the socially educationally backward
G classes issued by the President of India under sub-clause (1). The
expression ‘list of socially and educationally backward classes’ specified
in notification under sub-clause (1) is already there under sub-clause (2)
which clearly meant and referred to notification issued under sub-clause
(1), hence, there was no necessity for use of an additional word ‘Central’
in sub-clause (1) which was wholly superfluous and redundant.We are
H of the view that the word ‘Central’ was used for a purpose and object,
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 935
& ANR. [ASHOK BHUSHAN, J.]

the use of the ‘Central’ was only with the intent to limit the list issued by A
the President to Central services. Sub-clause (1) of Article 342 and sub-
clause (2) of Article 342A has to be given harmonious construction and
we read both the Articles together to find out purpose and intent of the
list issued by the President under sub-clause (1). It is the ‘Central List’
which could be amended by the Parliament by exercising power under
B
sub-clause (2) of Article 342A.
429. A question may be asked that when under 1993 Act “Central
List” was prepared by Government of India and the “State list” was
prepared by States, what was the necessity to bring the 102 nd
Constitutional Amendment if the same regime of two lists i.e. “Central
list” and “State list” was to continue? For answering the question we C
first look into the 1993 Act to understand the nature of exercise undertaken
under the Act regarding “Central List” and change in the exercise, if
any, after 102nd Constitutional Amendment.
430. We have already noticed Section 2(c) and 9 of 1993 Act. We
may also notice Section 11 of 1993 Act which provides: - D

“11. Periodic revision of lists by the Central Government.–
(1) The Central Government may at any time, and shall, at the
expiration of ten years from the coming into force of this Act and
every succeeding period of ten years thereafter, undertake revision
of the lists with a view to excluding from such lists those classes E
who have ceased to be backward classes or for including in such
lists new backward classes. (2) The Central Government shall,
while undertaking any revision referred to in sub-section (1),
consult the Commission.”
431. Section 2(c), 9 and 11 makes it clear that list prepared by the F
Central Government from time to time for reservation of appointments
or posts in favour of backward classes in the services under the
Government of India and any local or other authority, within the territory
of India or under the control of Government of India was an statutory
exercise of the Government of India under the 1993 Act. All the lists G
which were issued after 1993 Act by the Government of India were by
executive orders issued from time to time. For what purpose, 102nd
Constitutional Amendment was made? Answer is not for to seek.
432. Under the Government of India Act, 1935, the list of “the
Scheduled Castes” was to be specified by His Majesty in Council as per
H
936 SUPREME COURT REPORTS [2021] 15 S.C.R.

A clause 26 of Schedule I of the Government of India Act, 1935, which
was also an executive function. The legal regime of the list of Scheduled
caste saw a sea change under the Constitution of India as reflected in
Article 341 and 342. What was the change brought by Constitution of
India regarding the list of Scheduled Caste can be well understood when
we look into the debates of the Constituent Assembly on Draft Articles
B
300A and 300B which corresponds to Articles 341 and 342 of the
Constitution of India.
433. Dr. B.R. Ambedkar moving the Amendment briefly outlined
the object and purpose of the Constitutional provisions in debates dated
17.09.1949 in following words: -
C
“...The object of these two articles, as I stated, was to
eliminate the necessity of burdening the Constitution with long
lists of Scheduled Castes and Scheduled Tribes. It is now proposed
that the President, in consultation with the Governor or Ruler of a
State should have the power to issue a general notification in the
D Gazette specifying all the Castes and tribes or groups thereof
deemed to be Scheduled Castes and Scheduled Tribes for the
purposes of the privileges which have been defined for them in
the Constitution. The only limitation that has been imposed is this:
that once a notification has been issued by the President, which,
E undoubtedly, he will be issuing in consultation with and on the
advice of the Government of each State, thereafter, if any
elimination was to be made from the List so notified or any addition
was to be made, that must be made by Parliament and not by the
President. The object is to eliminate any kind of political factors
having a play in the matter of the disturbance in the Schedule so
F published by the President.”
434. 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.”

G 435. We have to read the same objective for change of the
statutory regime of backward class under 1993 Act into Constitutional
regime by Article 342A. To eliminate any kind of political factor to play
with regard to list of backward class issued by Government of India
from time to time under 1993 Act, the Constitution Amendment was
brought as was brought by Constituent Assembly by Draft Article 341
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 937
& ANR. [ASHOK BHUSHAN, J.]

and 342. Now, by virtue of Article 342A, the list once issued by the A
President under Article 342A(1) cannot be tinkered with except by way
of Parliamentary enactment. Thus, the above was the objective of the
Constitutional Amendment and not the taking away the power of the
States to identify the Backward Class in State with regard to reservation
for employment in the State services and reservation in educational
B
institution in the States. A laudable objective of keeping away political
pressure in amending the list of Backward class issued by President
once has been achieved, hence, it cannot be said that the 102 nd
Constitutional Amendment was without any purpose if the power of
State to identify Backward classes in their State was to remain as it is.
436. The above also sufficiently explain the stand taken by Minister C
of Social Justice and Empowerment on the floor of House. The Minister
clarified that the Constitutional Amendment is not to take away the power
of the State to identify the Backward Classes in the State for purposes
of the State and was confined to “Central List” which was being prepared
by the Government of India as in earlier regime. Learned Attorney D
General in his submission forcefully carried the same stand regarding
interpretation of Article 342A. We see no reason to reject the submission
of learned Attorney General for India and learned senior counsel
appearing for the States that the 102nd Constitutional Amendment was
not intended to take away the power of the State regarding identification
of Backward Class for services in the State or educational institutions in E
the State.
437. We also need to reflect on definition of socially and
educationally backward classes as occurring in Article 366(26C). Article
366 is the definition clause of the Constitution. Article 366 begins with
the following effect: F

“366. Definition in this Constitution, unless the context
otherwise requires, the following expressions have as, the meanings
hereby respectively assigned to them, .....”
‘(26C) “socially and educationally backward classes” means G
such backward classes as are so deemed under article 342A for
the purposes of this Constitution;’.”
438. When we look into the definition as inserted by Article
366(26C), it is clear that definition provides that socially and educationally
backward class means such backward classes as are deemed under
H
938 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Article 342A for the purposes of this Constitution. When we have
interpreted Article 342A to mean that Article 342A refers to ‘Central
List’ which is prepared for services under the Government of India and
organisations under the Government of India, the definition given under
Article 366(26C) which specifically refer to Article 342A has to be read
together and list of backward classes which is not Central List shall not
B
be governed by the definition under Article 366(26C). Since, the 26C
has been inserted in the context of Article 342A, if the context is list
prepared by the State and it is State List, definition under (26C) shall not
govern. Article 366(26C), thus, has to be read contextually with Article
342A and for no other purpose.
C 439. The interpretation which we have put on Article 342A is in
full accord with intention of the framers of the Constitution. Dr. B.R.
Ambedkar in the Constituent Assembly had said that a backward
community is to be determined by each local Government. The
determination, i.e., identification of the backward classes was, thus, left
D to the local Government as was clearly and categorically stated by Dr.
Ambedkar in the Constituent Assembly debates. It is most relevant for
the present discussion to quote the exact words used by Dr. Ambedkar
while answering the debate on draft sub-clause, Article 10(3) which is
Article 16(4) of the present Constitution:
E “Somebody asked me: “What is a backward community”?
Well, I think anyone who reads the language of the draft
itself will find that we have left it to be determined by each
local Government. A backward community is a community
which is backward in the opinion of the Government.”

F 440. The framers of the Constitution, thus, had contemplated that
determination of backward class as occurring in draft Article 10(3), i.e,
present Article 16(4) is to be done by the local Government. The
constitutional scheme, thus, was framed in accordance with the above
background. After the Constitution, it is for the last 68 years backward
class was being identified by the respective State Governments and they
G were preparing their respective lists and granting reservation under
Articles 15(4) and 16(4) as per their decision. The Constitution Bench
of Indra Sawhney did recognise and held that each State Government
is fully competent to identify backward classes and this is why the Indra
Sawhney directed for appointment of a permanent body both by the
Union as well as by the State and consequently Commissions were
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 939
& ANR. [ASHOK BHUSHAN, J.]

constituted National Backward Classes Commission and State Backward A
Classes Commission. To reverse the entire constitutional scheme
regarding identification of backward classes by the State which was
continuing in the last 68 years, a clear and explicit Constitutional
Amendment, was necessary. There is no express indication in the 102 nd
Constitutional Amendment that the power of the State is being taken
B
away for identification of the backward classes.
441. We are not persuaded to interpret Article 342A against the
intention of the Parliament which is reflected in the Parliamentary
Committee report and the statement made by the Minister on the floor
of the House. The statement of the Minister on the floor of the House
was clear and categorical, we cannot put an interpretation which was C
never intended by the Parliament and which may have serious
consequences with the rights of the States which neither Parliament
intended nor wanted to bring. We, thus, hold that Article 342A was brought
by Constitution 102nd Amendment to give constitutional status to National
Backward Classes Commission and for publication of list by the President D
of socially and educationally backward classes which was to be Central
List for governing employment under Government of India and the
organisations under it. The expression ‘Central List’ used in sub-clause
(2) of Article 342A has been used for the purpose and object which
cannot be ignored nor lost sight. The definition clause under Article
366(26C) has to be read contextually with Article 366(26C) which is E
referred under Article 366(2C) itself. Thus, the definition is relevant in
the context of ‘Central List’ and the definition is not governing to list
prepared by the State which was not under contemplation in Article
342A.
442. We do not find any merit in the challenge to the Constitution F
102nd Amendment. The Constitution 102nd Amendment does not violate
any basic feature of the Constitution. The argument of the learned counsel
for the petitioner is that Article 368 has not been followed since the
Constitution 102nd Amendment was not ratified by the necessary majority
of the State. The Parliament never intended to take the rights of the G
State regarding identification of backward classes, the Constitution 102nd
Amendment was not covered by Proviso to Article 368 sub-clause (2),
hence, the same did not require any ratification. The argument of
procedural violation in passing the 102nd Constitutional Amendment cannot
also be accepted. We uphold the Constitution 102 nd Amendment
interpreted in the manner as above. H
940 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 443. The High Court in the impugned judgment has correctly
interpreted the Constitution 102nd Amendment and the opinion of the
High Court that the Constitution 102nd Amendment does not take away
the legislative competence of Maharashtra Legislature is correct and
we approve the same.
B (15) Conclusions.
444. From our foregoing discussion and finding we arrive at
following conclusions:
(1) The greatest common measure of agreement in six separate
judgments delivered in Indra Sawhney is:
C (i) Reservation under Article 16(4) should not exceed 50%.
(ii) For exceeding reservation beyond 50%, extra-ordinary
circumstances as indicated in paragraph 810 of Justice Jeevan
Reddy should exist for which extreme caution is to be exercised.
(2) The 50% rule spoken in Balaji and affirmed in Indra Sawhney
D is to fulfill the objective of equality as engrafted in Article 14 of
which Articles 15 and 16 are facets. 50% is reasonable and it is to
attain the object of equality. To change the 50% limit is to have a
society which is not founded on equality but based on caste rule.
(3) We are of the considered opinion that the cap on percentage
E of reservation as has been laid down by Constitution Bench in
Indra Sawhney is with the object of striking a balance between
the rights under Article 15(1) and 15(4) as well as Articles 16(1)
and 16(4) . The cap on percentage is to achieve principle of equality
and with the object to strike a balance which cannot be said to be
F arbitrary or unreasonable.
(4) Providing reservation for advancement of any socially and
educationally backward class in public services is not the only
means and method for improving the welfare of backward class.
The State ought to bring other measures including providing
educational facilities to the members of backward class free of
G
cost giving concession in fee, providing opportunities for skill
development to enable the candidates from the backward class to
be self-reliant.
(5) There can be no quarrel that society changes, law changes,
people changes but that does not mean that something which is
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 941
& ANR. [ASHOK BHUSHAN, J.]

good and proven to be beneficial in maintaining equality in the A
society should also be changed in the name of change alone.
(6) When the Constitution Bench in Indra Sawhney held that
50% is upper limit of reservation under Article 16(4), it is the law
which is binding under Article 141 and to be implemented.
(7) We find that the Constitution Bench judgment in Indra B
Sawhney is also fully applicable in reference to Article 15(4) of
the Constitution of India.
(8) The setting aside of 50% ceiling by eleven-Judge Bench in
T.M.A. Pai Foundation case as was laid down by St. Stephen’s
case i.e. 50% ceiling in admission in aided Minority Instructions C
has no bearing on the principle of 50% ceiling laid down by Indra
Sawhney with respect to reservation. The judgment of T.M.A.
Pai was in reference to rights of minority under Article 30 and is
not relevant for Reservation under Articles 16(4) and 15(4) of the
Constitution. D
(9) The Constitution (Eighty-first Amendment) Act, 2000 by which
sub-clause (4B) was inserted in Article 16 makes it clear that
ceiling of 50% “has now received constitutional recognition”.
(10) We fully endorse the submission of Shri Rohtagi that
extraordinary situations indicated in paragraph 810 were only E
illustrative and cannot be said to be exhaustive. We however do
not agree with Mr. Rohtagi that paragraph 810 provided only a
geographical test. The use of expression “on being out of the
main stream of national life”, is a social test, which also needs to
be fulfilled for a case to be covered by exception. F
(11) We do not find any substance in any of the 10 grounds urged
by Shri Rohatgi and Shri Kapil Sibal for revisiting and referring
the judgment of Indra Sawhney to a larger Bench.
(12) What was held by the Constitution Bench in Indra Sawhney
on the relevance and significance of the principle of stare decisis G
clearly binds us. The judgment of Indra Sawhney has stood the
test of the time and has never been doubted by any judgment of
this Court. The Constitution Bench judgment of this Court in Indra
Sawhney neither needs to be revisited nor referred to a larger
Bench for consideration.
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942 SUPREME COURT REPORTS [2021] 15 S.C.R.

A (13) The Constitution Bench in M. Nagaraj does not contain any
ratio that ceiling of 50% reservation may be exceeded by showing
quantifiable contemporary data relating to backwardness. The
Commission has completely misread the ratio of the judgment,
when the Commission took the view that on the quantifiable data
ceiling of 50% can be breached.
B
(14) The Commission and the High Court found existence of the
extra-ordinary situations with regard to exceeding 50% ceiling in
respect to grant of separate reservation to Maratha because the
population of backward class is 80% and reservation limit is only
50%, containing the Maratha in pre-existing reservation for OBC
C shall not be justice to them, which circumstances is not covered
under the para meters indicated in Indra Sawhney’s case as
extra-ordinary circumstance to breach 50% ceiling.
(15) We have found that no extraordinary circumstances were
made out in granting separate reservation of Maratha Community
D by exceeding the 50 per cent ceiling limit of reservation. The Act,
2018 violates the principle of equality as enshrined in Article 16.
The exceeding of ceiling limit without there being any extra-ordinary
circumstances clearly violates Article 14 and 16 of the Constitution
which makes the enactment ultra vires.
E (16) The proposition is well settled that Commissions’ reports are
to be looked into with deference. However, one of the parameter
of scrutiny of Commission’s report as approved by this Court is
that on the basis of data and materials referred to in the report
whether conclusions arrived by the Commission are justified.
F (17) The measures taken under Article 15(4) and 16(4) can be
examined as to whether they violate any constitutional principle,
and are in conformity with the rights under Article 14, 15 and 16
of the Constitution. The scrutiny of measures taken by the State,
either executive or legislative, thus, has to pass test of the
G constitutional scrutiny.
(18) The word ‘adequate’ is a relative term used in relation to
representation of different caste and communities in public
employment. The objective of Article 16(4) is that backward class
should also be put in main stream to enable to share power of the
State by affirmative action. To be part of public service, as accepted
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 943
& ANR. [ASHOK BHUSHAN, J.]

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

(20) The Constitution pre-condition for providing reservation as
mandated by Article 16(4) is that the backward class is not
adequately represented in the public services. The Commission
labored under misconception that unless Maratha community is
not represented equivalent to its proportion, it is not adequately D
represented.
Indra Sawhney has categorically held that what is required by
the State for providing reservation under Article 16(4) is not
proportionate representation but adequate representation.
E
(21) The constitutional precondition as mandated by Article 16(4)
being not fulfilled with regard to Maratha class, both the Gaikwad
Commission’s report and consequential legislation are
unsustainable.
(22) We having disapproved the grant of reservation under Article F
16(4) to Maratha community, the said decision becomes relevant
and shall certainly have effect on the decision of the Commission
holding Maratha to be socially and educationally backward.
Sufficient and adequate representation of Maratha community in
public services is indicator that they are not socially and
educationally backward. G
From the facts and figures as noted by Gaikwad Commission
in its report regarding representation of Marathas in public services,
the percentage of Marathas in admission to Engineering, Medical
Colleges and other disciplines, their representation in higher
academic posts, we are of the view that conclusion drawn by the H
944 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Commission is not supportable from the data collected. The data
collected and tabled by the Commission as noted in the report
clearly proves that Marathas are not socially and educationally
backward class.
(23) The elementary principle of interpreting the Constitution or
B statute is to look into the words used in the statute, when the
language is clear, the intention of the Legislature is to be gathered
from the language used. The aid to interpretation is resorted to
only when there is some ambiguity in words or expression used in
the statute. The rule of harmonious construction, the rule of reading
of the provisions together as also rule of giving effect to the purpose
C of the statute, and few other principles of interpretation are called
in question when aids to construction are necessary in particular
context.
(24)The shift from literal rule to purposive and objective
interpretation of a constitutional document is adopted since the
D Constitution is not to be interpreted in static and rigid manner, the
Constitution is an organic and living document which needs to be
interpreted with cardinal principals and objectives of the
Constitution. The shift from literal to purposive method of
interpretation has been now more and more, being adopted for
interpreting a constitutional document.
E
(25) The law is well settled in this county that Parliamentary
Committee reports including speech given by the Minister in the
Parliament are relevant materials to ascertain the intention of
Parliament while construing constitutional provisions.
(26) We are of the considered opinion that the consultation by the
F State on all policy matters affecting the socially and educationally
backward classes is now mandatory as per sub-clause(9) of Article
338B which mandatory requirement cannot be by-passed by any
State while the State takes any major policy decision.
Sub-clause (9) of Article 338B uses the expression
G ‘consultation’. It is true that the expression ‘consultation’ is not to
be read as concurrence but the ‘consultation’ has to be effective
and meaningful. The object of consultation is that ‘consultee’ shall
place the relevant material before person from whom ‘consultation’
is asked for and advice and opinion given by consulting authority
shall guide the authority who has asked for consultation.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 945
& ANR. [ASHOK BHUSHAN, J.]

(27) It is, thus, clear as sun light that Parliamentary intention A
discernible from Select Committee report and statement of Minister
of Social Justice and Empowerment is that the intention of the
Parliament for bringing Constitutional amendment was not to take
away the power of the State to identify backward class in the
State.
B
(28) When the Parliamentary intention is discernable and
admissible as aid to statutory interpretation, we see no reason not
to interpret Article 342A in manner as per the intention of the
Parliament noticed above.
(29) We are of the view that word ‘Central’ in Article 342A (2) C
was used for purpose and object. The use of ‘Central’ was only
with the intent to limit the list issued by the President to Central
services. It is well settled rule of interpretation that no word in a
statute or Constitution is used without any purpose. Word ‘Central’
has to be given meaning and purpose.
D
(30) When we have interpreted Article 342A to mean that Article
342A refers to ‘Central List’ which is prepared for services under
the Government of India and organisations under the Government
of India, the definition given under Article 366(26C) which
specifically refer to Article 342A has to be read together and list
of backward classes which is not Central List shall not be governed E
by the definition under Article 366(26C). Since, the (26C) has
been inserted in the context of Article 342A, if the context is list
prepared by the State and it is State List, definition under (26C)
shall not govern.
(31) We, thus, hold that Article 342A was brought by Constitution F
102 nd Amendment to give constitutional status to National
Backward Classes Commission and for publication of list by the
President of socially and educationally backward classes which
was to be Central List for governing employment under
Government of India and the organisations under it. G
(32) The Constitution 102nd Amendment Act, 2018 does not violate
any basic feature of the Constitution. We uphold the constitutional
validity of Constitution (One Hundred and second Amendment)
Act, 2018.
H
946 SUPREME COURT REPORTS [2021] 15 S.C.R.

A (16) O R D E R
In view of the foregoing discussions and conclusions, we decide
all the Civil Appeals and Writ Petitions in this batch of cases in following
manner:
(1) C.A.No.3123 of 2020 and other civil appeals challenging
B the impugned judgment of the High Court dated 27.06.2019
are allowed. The impugned judgment of the High Court
dated 27.06.2019 is set aside. The writ petitions filed by the
appellants in the High Court are allowed with following
effect:
C (a) Section 2(j) of the Act, 2018 insofar as it declares
Maratha community Educationally and Socially
Backward Category is held to be ultra vires to the
Constitution and struck down.
(b) Section 4(1)(a) of Act, 2018 as amended by Act, 2019
D insofar as it grants reservation under Article 15(4) to
the extent of 12% of total seats in educational
institutions including private institutions whether aided
or un-aided by the State, other than minority
educational institutions, is declared ultra vires to the
E Constitution and struck down.
(c) Section 4(1)(b) of Act, 2018 as amended by Act, 2019
granting reservation of 13% to the Maratha
community of the total appointments in direct
recruitment in public services and posts under the
F State, is held to be ultra vires to the Constitution and
struck down.
(d) That admissions insofar as Postgraduate Medical
Courses which were already held not to affect by
order dated 09.09.2020, which shall not be affected
by this judgment. Hence, those students who have
G
already been admitted in Postgraduate Medical
Courses prior to 09.09.2020 shall be allowed to
continue.
(e) The admissions in different courses, Medical,
Engineering and other streams which were completed
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 947
& ANR. [ASHOK BHUSHAN, J.]

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

445. Before we close, we record our indebtedness to learned
counsel who appeared in these cases and enlightened us with regard to
issues involved in this batch of appeals and writ petitions which are of
seminal importance both for constitutional law as well as for the society
in general. All the learned counsel apart from oral submissions have F
submitted their excellent brief written notes touching various issues which
were sought to be canvassed by them before this Court, which rendered
valuable assistance to us.
446. Parties shall bear their own costs.
G
S. RAVINDRA BHAT, J.
1. Franklin D. Roosevelt, the great American leader, once said
that “The test of our progress is not whether we add more to the
abundance of those who have much; it is whether we provide enough
for those who have too little.”In these batch of appeals arising from a
H
948 SUPREME COURT REPORTS [2021] 15 S.C.R.

A common judgment of the Bombay High Court1, this court is called to
adjudicate upon the extent to which reservations are permissible by the
state, the correctness of its approach in designating a community2 as a
“Backward Class” for the purposes of the Constitution, and, by an
enactment3 (hereafter referred to as “the SEBC Act”) defining who
could benefit from, and the extent of reservations that could be made in
B
various state established facilities and educational institutions, and in the
public services of the State of Maharashtra.
A Brief Prelude
2. Dr. Babasaheb Ambedkar, when he spoke on November 25,
C 1949, in the Constituent Assembly of India at the time of the adoption of
the Constitution, presciently said:
“From January 26, 1950, onwards we are going to enter into
a life of contradictions. In politics, we will have equality, one
man, one vote, one vote and one value. In society and economy,
D we will still have inequality. In our social and economic life,
we shall, by reason of our social and economic structure,
continue to deny the principle of one man-one value.”
3. The quest for one person, one value, of true equality, and of
fraternity of Indians, where caste, race, gender, and religion are irrelevant,
E has produced mixed results. As long as there is no true equality, of
opportunity, of access, and of the true worth of human beings, and as
long as the world is “broken up into fragments by narrow domestic
walls”4 the quest remains incomplete. The present judgment is part of
an ongoing debate, which every generation of Indians has to grapple
with, and this court confront, at different points in time.
F
4. The Maratha community, in the State of Maharashtra repeatedly
sought reservations through diverse nature of demands through public
meetings, marches etc, by members of the community. It also led to
representatives and organizations of the community taking the demands
1
In WP No 937/2017; 1208/2019; 2126/2019, PIL No. 175/2018 and con nected batch
G of cases.
2
The Maratha community (hereafter “the Marathas”).
3
Maharashtra State Reservation for Seats for Admission in Educational Institutions in
the State and for appointments in the public services and posts under the State (for
Socially and Educationally Backward Classes) SEBC Act, 2018 i.e., Maharashtra Act
No. LXII of 2018 (for short ‘SEBC Act’).
4
H Rabindranath Tagore’s Gitanjali, Verse 35.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 949
& ANR. [S. RAVINDRA BHAT, J.]

to the streets, resulting in the State of Maharashtra promulgating an A
Ordinance for the first time in the year 2014, which granted reservation
to the community in public employment and in the field of education.
Later, the Ordinance was given the shape of an Act 5, which was
challenged before the Bombay High Court.6 The court, after considering
the rival submissions, including the arguments of the state stayed the
B
operation of the enactment. The State Government then set up a
backward class commission to ascertain the social and educational status
of the community. Initially, the commission was headed by Justice S. B.
Mhase. His demise led to the appointment of Justice MG Gaikwad
(Retired) as chairperson of the commission; it comprised of 10 other
members.The Committee headed by Justice Gaikwad was thus C
reconstituted on 3rd November, 2017. By its report dated 13.11.2018
(the Gaikwad Commission Report)7, the Commission, on the basis of the
surveys and studies it commissioned, and the analysis of the data collected
during its proceedings, recommended that the Maratha class of citizens
be declared as a Socially and Educationally Backward Class (“SEBC”
D
hereafter). This soon led to the enactment of the SEBC Act, giving
effect to the recommendations of the Gaikwad Commission, resulting in
reservation to the extent of 16% in favour of that community;
consequently, the aggregate reservations exceeded 50%.
5. The SEBC Act was brought into force on 30th November, 2018.
Close on its heels a spate of writ petitions was filed before the Bombay E
High Court, challenging the identification of Marathas as SEBCs, the
conclusions of the Commission, which culminated in its adoption by the
State of Maharashtra and enactment of the SEBC Act, the quantum of
reservations, and the provisions of the Act itself, on diverse grounds. All
writ petitions were clubbed together and considered. By the impugned F
judgment, the High Court turned down the challenge and upheld the
identification of Marathas as SEBCs, and further upheld the reasons
presented before it, that extraordinary circumstances existed, warranting
the breach of the 50% mark, which was held to be the outer limit in the
nine-judge decision of this court in Indra Sawhney v. Union of India8
(hereafter variously “Indra Sawhney” or “Sawhney”). G

5
Maharashtra Act No. I of 2015.
6
In Writ Petition No. 3151/2014.
7
Report of the Committee, page 10.
8
Indra Sawhney v Union of India 1992 Supp (3) SCC 217.
H
950 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 6. The special leave petitions, filed against the impugned judgment,
were heard, and eventually, leave granted. Some writ petitions too were
filed, challenging provisions of the SEBC Act. The validity of the
Constitution (102 nd) Amendment Act 9 too is the subject matter of
challenge, on the ground that it violates the basic structure, or essential
features of the Constitution.10A Bench of three judges, after hearing
B
counsel for the parties, referred the issues arising from these batch of
petitions and appeals, to a Constitution bench, for consideration, as
important questions arising for interpretation
7. The five-judge bench, by its order dated 08.03.2021, referred
the following points, for decision:
C
(1) Whether judgment in case of Indra Sawhney v. Union of India
[1992 Suppl. (3) SCC 217] needs to be referred to larger bench
or require re-look by the larger bench in the light of subsequent
Constitutional Amendments, judgments and changed social
dynamics of the society etc.?
D
(2) Whether Maharashtra State Reservation (of seats for admission
in educational institutions in the State and for appointments in the
public services and posts under the State) for Socially and
Educationally Backward Classes (SEBC) Act, 2018 as amended
in 2019 granting 12% and 13% reservation for Maratha community
E
in addition to 50% social reservation is covered by exceptional
circumstances as contemplated by Constitution Bench in Indra
Sawhney’s case?
(3) Whether the State Government on the strength of Maharashtra
F State Backward Commission Report chaired by M.C. Gaikwad
has made out a case of existence of extraordinary situation and
exceptional circumstances in the State to fall within the exception
carved out in the judgment of Indra Sawhney?
(4) Whether the Constitution One Hundred and Second
G Amendment deprives the State Legislature of its power to enact
a legislation determining the socially and economically backward
classes and conferring the benefits on the said community under
its enabling power?
9
Hereafter referred to as “the 103 rd Amendment”.
10
H Writ petition 938/2020.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 951
& ANR. [S. RAVINDRA BHAT, J.]

(5) Whether, States’ power to legislate in relation to “any backward A
class” under Articles 15(4) and 16(4) is anyway abridged by
Article 342(A) read with Article 366(26c) of the Constitution of
India?
(6) Whether Article 342A of the Constitution abrogates States’
power to legislate or classify in respect of “any backward class B
of citizens” and thereby affects the federal policy / structure of
the Constitution of India?
8. I had the benefit of reading the draft judgment of Ashok Bhushan,
J. which has exhaustively dealt with each point. I am in agreement with
his draft, and the conclusions with respect to Point Nos (1) (2) and (3). C
In addition to the reasons in the draft judgment of Ashok Bhushan, J., I
am also giving my separate reasons, in respect of Point No. (1). I am
however, not in agreement with the reasons and conclusions recorded in
respect of Point Nos. (4) and (5), for reasons to be discussed elaborately
hereafter. I agree with the conclusions of Ashok Bhushan, J., in respect
of Point No (6); however, I have given my separate reasons on this point D
too.
9. With these prefatory remarks, I would proceed to discuss my
reasons, leading to the conclusions, on both the points of concurrence,
as well as disagreement with the draft judgment of Ashok Bhushan, J.
E
Re Point No. 1: Whether judgment in case of Indra Sawhney
v. Union of India,1992 Supp. (3) SCC 217 needs to referred
to larger bench of require re-look by the larger bench in the
light of subsequent Constitutional Amendments, judgments and
changed social dynamics of the society etc.?
F
10. A careful reading of the judgments in Indra Sawhney v.
Union of India11, clarifies that seven out of nine judges concurred that
there exists a quantitative limit on reservation – spelt out @ 50%. In the
opinion of four judges, therefore, per the judgment of B.P. Jeevan Reddy,
J., this limit could be exceeded under extraordinary circumstances and
in conditions for which separate justification has to be forthcoming by G
the State or the concerned agency. However, there is unanimity in the
conclusion by all seven judges that an outer limit for reservation should
be50%. Undoubtedly, the other two judges, Ratnavel Pandian and P.B.
Sawant, JJ. indicated that there is no general rule of 50% limit on
11
1992 Supp. (3) SCC 217. H
952 SUPREME COURT REPORTS [2021] 15 S.C.R.

A reservation. In these circumstances, given the general common
agreement about the existence of an outer limit, i.e. 50%, the petitioner’s
argument about the incoherence or uncertainty about the existence of
the rule or that there were contrary observations with respect to absence
of any ceiling limit in other judgments (the dissenting judgments of K.
Subbarao, in T. Devadasan v Union of India12, the judgments of S.M.
B
Fazal Ali and Krishna Iyer, JJ. in State of Kerala v N.M. Thomas13 and
the judgment of Chinnappa Reddy, J. in K.C. Vasanth Kumar v. State
of Karnataka 14 ) is not an argument compelling a review or
reconsideration of Indra Sawhney rule.
11. The respondents had urged that discordant voices in different
C subjects (Devadasan, N.M. Thomas and Indra Sawhney) should lead
to re-examination of the ratio in Indra Sawhney. It would be useful to
notice that unanimity in a given bench (termed as a “supermajority”) –
denoting a 5-0 unanimous decision in a Constitution Bench cannot be
construed as per se a strong or compelling reason to doubt the legitimacy
D of a larger bench ruling that might contain a narrow majority (say, for
instance with a 4-3 vote, resulting in overruling of a previous unanimous
precedent). The principle of stare decisis operates both vertically- in
the sense that decisions of appellate courts in the superior in vertical
hierarchy, bind tribunals and courts lower in the hierarchy, and horizontally-
in the sense that a larger bench formation ruling, would be binding and
E prevail upon the ruling of a smaller bench formation. The logic in this
stems from the raison d’etre for the doctrine of precedents, i.e. stability
in the law. If this rule were to be departed from and the legitimacy of a
subsequent larger bench ruling were to be doubted on the ground that it
comprises of either plurality of opinions or a narrow majority as compared
F with a previous bench ruling (which might be either unanimous or of a
larger majority, but of lower bench strength), there would uncertainty
and lack of clarity in the realm of precedential certainty. If precedential
legitimacy of a larger bench ruling were thus to be doubted, there are no
rules to guide the courts’ hierarchy or even later benches of the same
court about which is the appropriate reading to be adopted (such as for
G instance, the number of previous judgments to be considered for
determining the majority, and consequently the correct law).
12
1964 (4) SCR 680.
13
1976 (2) SCC 310.
14
1985 SCR Suppl. (1) 352.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 953
& ANR. [S. RAVINDRA BHAT, J.]

12. In view of the above reasoning, it is held that the existence of A
a plurality of opinions or discordant or dissident judgments in the past –
which might even have led to a majority (on an overall headcount)
supporting a particular rule in a particular case cannot detract from the
legitimacy of a rule enunciated by a later, larger bench, such as the nine-
judge ruling in Indra Sawhney.
B
13. So far as the argument that Indra Sawhney was concerned
only with reservations under Article 16(4) is concerned, this Court is
inclined to accept the submissions of the petitioner. The painstaking
reasoning in various judgments, in Indra Sawhney, including the
judgments of Pandian and Sawant, JJ. would show that almost all the
previous precedents on both Article 15(4) and 16(4) were considered 15. C

14. The tenor of all the judgments shows the anxiety of this Court
to decisively rule on the subject of reservations under the Constitution –
in regard to backward classes and socially and educationally backward
classes. This is also evident from the history of Article 15(4) which was
noticed and the phraseology adopted (socially and educationally backward D
classes) which was held to be wider than “backward classes” though
the later expression pointed to social backwardness. Such conclusions
cannot be brushed aside by sweeping submission pointing to the context
of the adjudication in Indra Sawhney.
15. The argument on behalf of the States –that a decision is to be E
considered as a ratio only as regards the principles decided, having
regard to the material facts, in the opinion of this Court, the reliance
upon a judgment of this Court in Krishena Kumar and Anr. v. Union of
India & Ors.16 in the opinion of this Court is insubstantial. The reference
of the dispute, i.e. notification of various backward classes for the purpose F
of Union public employment under Article 16(4) and the issuance of the
OM dated 1990 no doubt provided the context for the Court to decide as
it did in Indra Sawhney. However, to characterize its conclusions and
the considerations through the judgments of various judges, as not ratios
but mere obiter or observations not binding upon the states is an over-
15
M.R. Balaji v. State of Mysore 1963 Supp. 1 SCR 439; P. Rajendran v. State of T.N.
G
(1968) 2 SCR 786 [Articles 15(4)]; A Peeriakaruppan v. State of T.N. (1971) 1 SCC 38
[Article 15(4)]; State of A.P. v. USV Balram (1972) 1 SCC 660 [Article 15(4)]; T.
Devadasan (supra); State of U.P. v. Pradeep Tandon (1975) 1 SCC 267; Janki Prasad
Parimoo v. State of J&K (1973) 1 SCC 420; N.M. Thomas [Article 16(4) & K.C.
Vasanth Kumar [Article 15(4)].
16
(1990) 4 SCC 207. H
954 SUPREME COURT REPORTS [2021] 15 S.C.R.

A simplification. The OM did lead to widespread protests and discontent.
Initially, the writ petitions were referred to a five-judge bench which,
upon deliberation and hearing felt that the matter required consideration
by a larger bench (presumably in view of the previous ruling by the
seven judges in N.M. Thomas where two judges had expressly stated
that there was no ceiling on reservation and the later five judge judgment
B
in K.C. Vasanth Kumar where one judge had expressed a similar
reservation). It was for the purpose of decisively declaring the law that
the nine-judge bench was formed and the question formulated by it. Not
only did the judges who constituted a majority speak about this rule;
even the two other judges who did not agree with the 50% ceiling rule,
C dealt with this aspect. This is evident from the judgment of Sawant, J 17:
“518. To summarise, the question may be answered thus. There
is no legal infirmity in keeping the reservations under Clause
(4) alone or under Clause (4) and Clause (1) of
Article 16 together, exceeding 50%. However, validity of the
D extent of excess of reservations over 50% would depend upon
the facts and circumstances of each case including the field
in which and the grade or level of administration for which
the reservation is kept. Although, further, legally and
theoretically the excess of reservations over 50% may be
justified, it would ordinarily be wise and nothing much would
E be lost, if the intentions of the framers of the Constitution
and the observations of Dr. Ambedkar, on the subject in
particular, are kept in mind. The reservations should further
be kept category and gradewise at appropriate percentages
and for practical purposes the extent of reservations should
F be calculated category and gradewise..”
16. Likewise, Pandian, J., after elaborate discussion,18 recorded
his conclusions in this manner:
“189. I fully share the above views of Fazal Ali, Krishna
Iyer, Chinnappa Reddy, JJ holding that no maximum
G percentage of reservation can be justifiably fixed under
Articles 15(4) and/or 16(4) of the Constitution.”
17
At page 552, SCC Report.
18
In paras 177-178 at page 407-413 and the conclusions in para 189 at page 413 in
Indra Sawhney (supra).
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 955
& ANR. [S. RAVINDRA BHAT, J.]

17. Both show that the extent of whether a 50% limit is applicable, A
was considered by all the judges. Therefore, the arguments on behalf of
the States and the contesting respondents in this regard are unmerited.
Likewise, to say that whether a 50% limit of reservation existed or not
was not an issue or a point of reference, is without basis; clearly that
issue did engage the anxious consideration of the court.
B
18. The States had argued that providing a ceiling (of 50%)
amounts to restricting the scope of Part III and Part IV of the Constitution.
A provision of the constitution cannot be “read down” as to curtail its
width, or shackle state power, which is dynamic. The state legislatures
and executives are a product of contemporary democratic processes.
They not only are alive to the needs of the society, but are rightfully C
entitled to frame policies for the people. Given the absence of any caste
census, but admitted growth of population, there can be no doubt that
the proportion of the backward classes has swelled, calling for greater
protection under Articles 15 (4) and 16 (4). Also, every generation has
aspirations, which democratically elected governments are bound to meet D
and consider, while framing policies. In view of these factors, the fixed
limit of 50% on reservations, requires to be reconsidered. Counsel
submitted that whether reservations in a given case are unreasonable
and excessive, can always be considered in judicial review, having regard
to the circumstances of the particular case, the needs of the state and by
weighing the rights, in the context of the states’ priorities, having regard E
to their obligations under the Directive Principles of State Policy, which
are now deemed as fundamental as the rights under Part III of the
Constitution. The court’s flexibility in testing whether a measure is
reasonable or not can always be retained and moulded appropriately.
19. Lt. Col Khajoor Singh v. Union of India (supra) is an F
authority for the approach that this court should adopt, when it is asked
to reconsider a previous precedent of long standing. The court observed
that:
“We are of opinion that unless there are clear and compelling
reasons, which cannot be denied, we should not depart from G
the interpretation given in these two cases and indeed from
any interpretation given in an earlier judgment of this Court,
unless there is a fair amount of unanimity that the earlier
decisions are manifestly wrong. This Court should not, except
when it is demonstrated beyond all reasonable doubt that its H
956 SUPREME COURT REPORTS [2021] 15 S.C.R.

A previous ruling, given after due deliberation and full hearing,
was erroneous, go back upon its previous ruling, particularly
on a constitutional issue.”
20. In Keshav Mills (supra) the court elaborated what
considerations would weigh with it, when a demand for review of the
B law declared in a previous judgment is made:
“..Frequent exercise by this Court of its power to review its
earlier decisions on the ground that the view pressed before
it later appears to the Court to be more reasonable, may
incidentally tend to make law uncertain and introduce
C confusion which must be consistently avoided. …it would be
inexpedient to lay down any principles which should govern
the approach of the Court in dealing with the question of
reviewing and revising its earlier decisions. It would always
depend upon several relevant considerations: What is the
nature of the infirmity or error on which a plea for a review
D and revision of the earlier view is based? On the earlier
occasion, did some patent aspects of the question remain
unnoticed, or was the attention of the Court not drawn to any
relevant and material statutory provision, or was any previous
decision of this Court bearing on the point not noticed? Is
E the Court hearing such plea fairly unanimous that there is
such an error in the earlier view? What would be the impact
of the error on the general administration of law or on public
good? Has the earlier decision been followed on subsequent
occasions either by this Court or by the High Courts? And,
would the reversal of the earlier decision lead to public
F inconvenience, hardship or mischief? These and other
relevant considerations must be carefully borne in mind
whenever this Court is called upon to exercise its jurisdiction
to review and revise its earlier decisions.”
21. Identical observations were made in Jindal Stainless (supra).
G In Union of India v Raghubir Singh19, a Constitution Bench articulated
the challenges often faced by this court:
“….The social forces which demand attention in the cauldron
of change from which a new society is emerging appear to
19
H 1989 (3) SCR 316.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 957
& ANR. [S. RAVINDRA BHAT, J.]

call for new perceptions and new perspectives…..The A
acceptance of this principle ensured the preservation and
legitimation provided to the doctrine of binding precedent,
and therefore, certainty and finality in the law, while permitting
necessary scope for judicial creativity and adaptability of
the law to the changing demands of society. The question then
B
is not whether the Supreme Court is bound by its own previous
decisions. It is not. The question is under what circumstances
and within what limits and in what manner should the highest
Court over-turn its own pronouncements.”
22. What the respondents seek, in asking this court to refer the
issue to a larger bench, strikes at the very essence of equality. The C
review of precedents undertaken by Indra Sawhney not only spanned
four turbulent decades, which saw several amendments to the
Constitution, but led to a debate initiated by five judges in M.R. Balaji,
(and followed up in at least more than 10 decisions) later continued by
seven judges in N.M. Thomas. This debate- i.e., between Balaji and D
Indra Sawhney, saw the court’s initial declaration that a 50% ceiling on
reservations should be imposed, which was questioned in three
judgments, though not in majority decisions of various benches. Therefore,
to decisively settle this important issue- among other issues, the nine-
judge bench was constituted. Indra Sawhney decisively ruled that
reservations through special provisions should not exceed 50% by a 7-2 E
majority. Two judges did not indicate any limit on reservations, they did
not also indicate any clear guiding principle about what should be the
court’s approach, when a party complains that reservations are excessive
or unreasonable. Indra Sawhney is equally decisive on whether
reservations can be introduced for any new class, or the quantum of F
reservations, when introduced, or changed, can be the subject matter of
judicial review, for which according to the majority of judges, the guiding
principle would be the one enunciated in Barium Chemicals v. Company
Law Board 20.
23. The salience of the issue under consideration is that equality G
has many dimensions. In the context of Articles 15 (4) and 16 (4,) and
indeed the power of classification vested in the state, to adopt protective
20
1966 (Suppl.) 3 S.C.R. 311, to the effect that where a statutory power can be
exercised through the subjective satisfaction of any authority or the state, it should be
based on objective materials, and on relevant considerations, eschewing extraneous
factors and considerations. H
958 SUPREME COURT REPORTS [2021] 15 S.C.R.

A discrimination policies, there is an element of obligation, or a duty, to
equalize those sections of the population who were hitherto, “invisible”
or did not matter. The reach of the equalizing principle, in that sense is
compelling. Thus while, as explained by this court in Mukesh Kumar v.
State of Uttarakhand 21 there is no right to claim a direction that
reservations should be provided (the direction in that case being sought
B
was reservation in promotions in the state of Uttarakhand), the court
would intervene if the state acts without due justification, but not to the
extent of directing reservations.22 Equally, the states’ obligation to ensure
that measures to uplift the educational and employment opportunities of
all sections, especially vulnerable sections such as scheduled castes and
C STs and backward class of citizens, is underscored- not only in Article
15 (4) but also by Article 46, though it is a directive principle.23 It is
wrong therefore, to suggest that Indra Sawhney did not examine the
states’ obligations in the light of Directive Principles; it clearly did- as is
evident from the express discussion on that aspect in several judgments.24
D 24. Protective discrimination, affirmative action, or any other term
used by this court, means the measure of the state to ensure that past
inequities are not carried on as today’s burdens, that full (and one may
add, meaningful) opportunities are given to all in participation in
21
(2020) 3 SCC 1.
22
As this court did, in P & T Scheduled Caste/Tribe Employee Welfare Association vs
E Union of India & Ors. 1988 SCR Suppl. (2) 623, when, upon withdrawal of a government
order resulted in denial of reservation in promotion, hitherto enjoyed by the employees.
The court held:
“While it may be true that no writ can be issued ordinarily competing
the Government to make reservation under Article 16 (4) which PG NO 630 is
only an enabling clause, the circumstances in which the members belonging to
the Scheduled Castes and the Scheduled Tribes in the Posts and Telegraphs
F Department are deprived of indirectly the advantage of such reservation which
they were enjoying earlier while others who are similarly situated in the other
departments are allowed to enjoy it make the action of Government
discriminatory and invite intervention by this Court.”
23
“46. Promotion of educational and economic interests of Scheduled Castes,
Scheduled Tribes and other weaker sections The State shall promote with special care
the educational and economic interests of the weaker sections of the people, and, in
G particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them
from social injustice and all forms of exploitation.”
24
There is discussion about the states’ obligations, in the context of reservations, in the
judgments of Pandian (paras 173,194); Dr. Thommen, J (Para 297); Kuldip Singh, J
(para 387); P.B. Sawant, J (paras 416-418, 433-34, 479-451); R.M. Sahai, J (Para 593)
and B.P. Jeevan Reddy, for himself, Kania, CJ, M.N. Venkatachalaiah and A.M. Ahmadi,
H JJ (in Paras 648-49, 695, 747, Paras 834-835 and Para 860- all SCC references).
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 959
& ANR. [S. RAVINDRA BHAT, J.]

governance structures: access to public institutions (through special A
provisions under Article 15 (4)) and adequate representation (through
reservations under Article 16 (4)). They are tools in the repertoire of
the states to empower those hitherto barred from sharing power- and all
that went with it, of bringing first hand perspectives in policy making, of
acting as pathbreakers, of those breaking the glass ceiling- in short,
B
imparting dimensions in democratic governance which were absent. 25
25. A constant and recurring theme in the several judgments of
Indra Sawhney was the concept of balance. This expression was used
in two senses- one, to correct the existing imbalance which existed, due
to past discriminatory practices that kept large sections of the society
backward; two, the quest for achieving the balance between the guarantee C
of equality to all, and the positive or affirmative discrimination sanctioned
by Article 15 (4) and 16 (4).26 B.P. Jeevan Reddy, J (for himself and
four other judges) held that (para 808, SCC reports):
“It needs no emphasis to say that the principal aim of Articles
14 and 16 is equality and equality of opportunity and that D
clause (4) of Article 16 is but a means of achieving the very
same objective. Clause (4) is a special provision — though
not an exception to clause (1). Both the provisions have to be
harmonised keeping in mind the fact that both are but the re-
statements of the principle of equality enshrined in Article E
14. The provision under Article 16(4) — conceived in the
interest of certain sections of society — should be balanced
against the guarantee of equality enshrined in clause (1) of
25
The idea of empowerment is articulated in the judgment of Jeevan Reddy, in Indra
Sawhney firstly in Para 694: “The above material makes it amply clear that the
objective behind clause (4) of Article 16 was the sharing of State power. The State power F
which was almost exclusively monopolised by the upper castes i.e., a few communities,
was now sought to be made broad-based. The backward communities who were till
then kept out of apparatus of power, were sought to be inducted thereinto and since that
was not practicable in the normal course, a special provision was made to effectuate the
said objective. In short, the objective behind Article 16(4) is empowerment of the deprived
backward communities — to give them a share in the administrative apparatus and in
G
the governance of the community. “and then, in Para 788. that “the object of Article
16(4) was “empowerment” of the backward classes. The idea was to enable them to
share the state power.”
26
This theme of balance occurs 49 times in various judgments. All the judges deal with
it; although Pandian and Sawant, JJ, reject the numerical ceiling of 50%, their judgments
acknowledge the need to maintain the balance between the main parts of Articles 15 and
16, while ensuring that past discrimination is remedied. H
960 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Article 16 which is a guarantee held out to every citizen and
to the entire society.”
26. There is more discussion on this subject by the same
judgment.27 Dr. Thommen, J, expressed that reservations should not be
an end all, and should not be perpetuated, beyond the objectives they
B were designed to achieve and that “A balance has to be maintained
between the competing values and the rival claims and interests so
as to achieve equality and freedom for all.” (Ref. Para 255, SCC
reports). R.M. Sahai, J, expressed the idea in these terms (Ref. Para
560, SCC reports):
C “Any State action whether ‘affirmative’ or ‘benign’,
‘protective’ or ‘competing’ is constitutionally restricted first
by operation of Article 16(4) and then by interplay of Articles
16(4) and 16(1). State has been empowered to invade the
constitutional guarantee of ‘all’ citizens under Article 16(1)
in favour of ‘any’ backward class of citizens only if in the
D opinion of the government it is inadequately represented.
Objective being to remove disparity and enable the
unfortunate ones in the society to share the services to secure
equality in, ‘opportunity and status’ any State action must be
founded on firm evidence of clear and legitimate identification
E of such backward class and their inadequate representation.
Absence of either renders the action suspect. Both must exist
in fact to enable State to assume jurisdiction to enable it to
take remedial measures….States’ latitude is further narrowed
when on existence of the two primary, basic or jurisdictional
facts it proceeds to make reservation as the wisdom and
F legality of it has to be weighed in the balance of equality
pledged and guaranteed to every citizen and tested on the
anvil of reasonableness to “smoke out” any illegitimate use
and restrict the State from crossing the clear constitutional
limits.”
G 27. Constitutional adjudication involves making choices, which
necessarily means that lines have to be drawn, and at times re-drawn-
depending on “the cauldron of change”28. It has been remarked that
decisions dealing with fundamental concepts such as the equality clause
27
Paras 614 and 814, SCC reports.
28
H A phrase used in Raghubir Singh (supra).
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 961
& ANR. [S. RAVINDRA BHAT, J.]

are “heavily value-laden, and necessarily so, since value premises A
(other than the values of “equality” and “rationality”) are necessary
to the determination that the clause requires.”29
28. Interpretation of the Constitution, is in the light of its uniqueness,
Dr. Aharon Barak, the distinguished former President of the Israeli
Supreme Court remarked, in his work:30 B
“Some argue that giving a modern meaning to the language
of the constitution is inconsistent with regarding the
constitution as a source of protection of the individual from
society 31 . Under this approach, if the constitution is
interpreted in accordance with modern views, it will reflect C
the view of the majority to the detriment of the minority. My
reply to this claim is inter alia, that a modern conception of
human rights is not simply the current majority’s conception
of human rights. The objective purpose refers to fundamental
values that reflect the deeply held beliefs of modern society,
not passing trends. These beliefs are not the results of public D
opinion polls or mere populism; they are fundamental beliefs
that have passed the test of time, changing their form but not
their substance.”
29. As the organ entrusted with the task of interpreting the laws
and the Constitution, the word of this court is final. Undoubtedly its role E
is as a co-equal branch of governance; nevertheless, its duty to interpret
the law and say what its silences (or ambiguities) denote, in the particular
contexts that it has to contend with, involve making choices. These choices
are not made randomly, or arbitrarily32, but based on a careful analysis
of the rights involved, the remedies proposed by the legislative or F
executive measure, the extent of limits imposed by the Constitution, and
so on. The history of the legislation or the measure, or indeed the provision
of the Constitution plays a role in this process. Interpretation involves an
29
Legislative Purpose, Rationality, and Equal Protection, 82 YALE L.J. 123 (1972). Cf.
C. PERELMAN, THE IDEA OF JUSTICE AND THE PROBLEM OF ARGUMENT
1-60 (1963). G
30
Aharon Barak, The Judge in a Democracy, p.132.
31
See generally Antonin Scalia, “Originalism: The Lesser Evil, “57 U. Cin. L. Rev. 849,
862-863 (1989).
32
Michael Kirby, Indian and Australian Constitutional Law: A Recent Study in
Contrasts’, 60 JILI (2018) 1, p. 30; Also see Herbert Weschler, ‘Towards Neutral
Principles of Constitutional Law’, (1959) 73 Harv. L. Rev. 1.
H
962 SUPREME COURT REPORTS [2021] 15 S.C.R.

A element of line drawing, of making choices. This court’s decisions are
replete with such instances. The doctrine of classification is the first
instance where this court drew a line, and indicated a choice of
interpretation of Article 14; likewise, right from In re Kerala Education
Bill33 to T.M.A Pai Foundation v. State of Karnataka,34 a textually
absolute fundamental right, i.e. Article 30 has been interpreted not to
B
prevent regulation for maintenance of educational standards, and
legislation to prevent mal-administration. Yet, whenever a choice is made
in the interpretation of a provision of this constitution, and a limit indicated
by a decision, it is on the basis of principle and principle alone.
30. As noticed previously, the search of this court, in Indra
C Sawhney – after an exhaustive review of all previous precedents, was
to indicate an enduring principle for application by courts, that would
strike the just balance between the aspirational rights – and the
corresponding duty of the states to introduce affirmative measures to
combat inequality (under Articles 15 [4] and 16 [4]) on the one hand,
D and the principle of equality and its command against practising inequality
in proscribed areas (caste being one, in both Articles 15 and 16). It was
suggested during the hearing that the quantitative criteria (50% limit on
reservation) is too restrictive leaving no breathing room for democratically
elected governments. This court remarked in R.C. Poudyal v. Union
of India35 that
E
“124. … In the interpretation of a constitutional document,
“words are but the framework of concepts and concepts may
change more than words themselves”. The significance of the
change of the concepts themselves is vital and the
constitutional issues are not solved by a mere appeal to the
F meaning of the words without an acceptance of the line of
their growth. It is aptly said that “the intention of a Constitution
is rather to outline principles than to engrave details”.”
31. The idea of a definitive and objective principle, in the form of
a 50% ceiling on limitation, emerges on an overall reading of Indra
G Sawhney. The argument made by the respondents was that this court
should not go by such a ceiling limit, but rather, while exercising its judicial
review power, proceed on a case-by-case approach, and resting its
33
1959 SCR 995.
34
2002 (8) SCC 481.
35
H 1994 Supp (1) SCC 324.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 963
& ANR. [S. RAVINDRA BHAT, J.]

conclusions on fact dependent exercises, using other criteria, such as A
reasonableness, proportionality, etc. for judging excessive reservations.
However, what constitutes reasonableness and what is proportionate in
a given case, would be unchartered and indeterminate areas. It is one
thing to try persuading the court to discard a known principle, in the light
of its loss of relevance, yet for that argument to prevail, not only should
B
the harm caused by the existing principle be proved, but also a principle
that is sought to be substituted, should have clarity, or else, the argument
would be one asking the court to take a leap in the dark. It is not enough,
therefore to resort to observations such as “the length of the leap to
be provided depends upon the gap to be covered” 36 or the
proportionality doctrine (deployed to judge validity of an executive or C
legislative measure), because they reveal no discernible principle.
Reasonableness is no doubt a familiar phrase in the constitutional lexicon;
yet there is considerable subjectivity and relativity in its practise. Again,
to quote Dr. Barak there are “zones of reasonableness”37. This places
the court in a difficult situation, where the state’s choices require greater
D
deference, and a corresponding narrowing of judicial review, given that
the standard of review is the one indicated in Barium Chemicals. The
South African Constitutional Court voiced a similar idea, in connection
with an affirmative action program, when it observed that:
“The fairness of a measure differentiating on any prohibited
ground depends not only on its purpose, but on the cumulative E
effect of all relevant factors, including the extent of its
detrimental effects on non-designated groups”.38
32. In another case, City Council of Pretoria v. Walker,39 Sachs
J. (of the South African Constitutional Court)remarked that:
F
“[p]rocesses of differential treatment which have the legitimate
purpose of bringing about real equality should not be
undertaken in a manner which gratuitously and insensitively
offends and marginalises persons identified as belonging to
groups who previously enjoyed advantage.”
G
33. In that case, the question for judicial review was whether a
local authority in a period of transition, could impose a lower flat rate
36
State of Punjab v. Hiralal, 1971 (3) SCR 267.
37
The Judge in a Democracy, Aharon Barak at p. 248.
38
Harksen v. Lane 1997 (11) BCLR 1489 (CC) at 1511C.
39
1998 (3) BCLR 257 (CC) at para. 123. H
964 SUPREME COURT REPORTS [2021] 15 S.C.R.

A tariff in one locality (inhabited by the historically discriminated black
community, with poor infrastructure) and a higher metered tariff in a
locality with better infrastructure, inhabited by the white community.
Sachs J. held that this was not unfair discrimination against the applicant,
a white resident, but rather a failure on the part of the local authority to
put down a basis for the differential levy of tariffs, rooted in substantive
B
equality:
“Yet, any form of systematic deviation from the principle of
equal and impartial application of the law (as was the practice
in the present case for a certain period), might well have to
be expressed in a law of general application which would be
C justiciable according to the criteria of reasonableness and
justifiability”.
34. Upon examination of the issue from this perspective, the ceiling
of 50% with the “extraordinary circumstances” exception, is the just
balance- what is termed as the “Goldilocks solution”40 - i.e. the solution
D containing the right balance that allows the state sufficient latitude to
ensure meaningful affirmative action, to those who deserve it, and at the
same time ensures that the essential content of equality, and its injunction
not to discriminate on the various proscribed grounds (caste, religion,
sex, place of residence) is retained. This court in M. Nagaraj v. Union
E of India 41observed that “a numerical benchmark is the surest
immunity against charges of discrimination.” To dilute the 50%
benchmark further, would be to effectively destroy the guarantee of
equality, especially the right not to be discriminated against on the
grounds of caste (under Articles 15 and 16).

F 35. In view of all these reasons, the argument that Indra Sawhney
requires reconsideration, and ought to be referred to a larger bench, is
hereby rejected.
Affirmative Action and the Reservation Paradigm
Special Provisions
G 40
“Having or producing the optimal balance between two extremes” The Merriman
Webster Dictionary https://www.merriam-webster.com/dictionary/Goldilocks. The term
was used by Justice Elena Kagan in her dissent, in Arizona Free Enterprise Club’s
Freedom Club PAC v. Bennett, 564 U.S. 721 (2011)“the difficulty then, is finding the
Goldilocks solution-not too large, not too small, but just right.”This term is also used
to denote a proper balance, in management parlance.
41
H (2006) 8 SCC 212.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 965
& ANR. [S. RAVINDRA BHAT, J.]

36. Before parting with this section, this opinion would dwell upon A
affirmative action, and possibilities under the Constitution, from a larger
perspective. Most debates, and precedents in the country have centred
round the extent of reservation and administration of quotas (reservations)
under Articles 15 (4) and 16(4). The term “special provision” in Article
15 (4) is of wider import, than reservations. Unlike the United States of
B
America which – in the absence of a provision enabling such special
provisions, and which has witnessed a turbulent affirmative action policy
jurisprudence, the 1960s and 1970s witnessing the framing of policies
and legislation, and the subsequent narrowing of minority and racial criteria,
to support affirmative action, our Constitution has a specific provision.
37. During the hearing, it was pointed out that there are not enough C
opportunities for education of backward classes of citizens, and that
schools and educational institutions are lacking. It was argued by the
states that sufficient number of backward classes of young adults are
unable to secure admissions in institutions of higher learning.
38. It would be, in this context, relevant to notice that two important D
amendments to the Constitution of India, which have the effect of
transforming the notion of equality, were made in the last 15 years. The
first was the eighty sixth amendment – which inserted Article 21A42-
which had the effect of enjoining the state to provide free and compulsory
education to all children in the age group 6-14. The second was the E
Constitution Ninety Third Amendment Act, which inserted Article 15
(5)43 enabling the state to make special provisions “for the advancement
of any socially and educationally backward classes of citizens or
for the Scheduled Castes or the Scheduled Tribes in so far as such
special provisions relate to their admission to educational institutions
including private educational institutions, whether aided or F
unaided.” The transformative potential of these provisions (both of which
42
“21A. Right to education. — The State shall provide free and compulsory education
to all children of the age of six to fourteen years in such manner as the State may, by law,
determine.”
43
“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth..[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall
G
prevent the State from making any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes or
the Scheduled Tribes in so far as such special provisions relate to their admission to
educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred to in
clause (1) of article 30.” H
966 SUPREME COURT REPORTS [2021] 15 S.C.R.

A have been upheld by this court – in Pramati Educational & Cultural
Trust v. Union of India 44) is yet to be fully realized. Article 21A
guarantees minimum universal education; whereas Article 15(5) enables
access to backward classes of citizens admissions, through special
provisions by the state, in private educational institutions. The Right
to Education Act, 2009 provides a broad statutory framework for
B realization of Article 21A.
39. The availability of these constitutional provisions, however
does not mean that those belonging to backward class of citizens would
be better off or would reap any automatic benefits. Here, it is relevant to
consider that often, any debate as to the efficacy or extent of reservation,
C invariably turns to one stereotypical argument- of merit. Long ago, in his
important work45– Marc Galanter had dealt with the issue of merit in
this manner:
“Let us take merit to mean performance on tests (examinations,
interview, character references or whatever) thought to be
related to performance relevant to the position (or other
D
opportunity) in question and commonly used as a measure of
qualification for that position. (In every case it is an empirical
question whether the test performance is actually a good
predictor of performance in the position, much less of
subsequent positions for which it is a preparation.)
E Performance on these tests is presumably a composite of
native ability, situational advantages (stimulation in the family
setting, good schools, sufficient wealth to avoid malnutrition
or exhausting work, etc.), and individual effort. The latter
may be regarded as evidence of moral desert, but neither native
ability nor situational advantages would seem to be. The
F common forms of selection by merit do not purport to measure
the moral desert dimension of performance. Unless one is
willing to assume that such virtue is directly proportionate to
the total performance, the argument for merit selection cannot
rest on the moral deservingness of individual candidates…..”
G 40. In his judgment, (in Indra Sawhney) Sawant, J. too spoke of
this phenomenon:
“405. The inequalities in Indian society are born in homes
and sustained through every medium of social advancement.
44
2014 (8) SCC 1.
45
H Marc Galanter, Competing Equalities – Law and the Backward Classes in India.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 967
& ANR. [S. RAVINDRA BHAT, J.]

Inhuman habitations, limited and crippling social intercourse, A
low-grade educational institutions and degrading occupations
perpetuate the inequities in myriad ways. Those who are
fortunate to make their escape from these all-pervasive
dragnets by managing to attain at least the minimum of
attainments in spite of the paralysing effects of the debilitating
B
social environment, have to compete with others to cross the
threshold of their backwardness. Are not those attainments,
however low by the traditional standards of measuring them,
in the circumstances in which they are gained, more creditable?
Do they not show sufficient grit and determination,
intelligence, diligence, potentiality and inclination towards C
learning and scholarship? Is it fair to compare these
attainments with those of one who had all the advantages of
decent accommodation with all the comforts and facilities,
enlightened and affluent family and social life, and high
quality education? Can the advantages gained on account
D
of the superior social circumstances be put in the scales to
claim merit and flaunted as fundamental rights? May be in
many cases, those coming from the high classes have not
utilised their advantages fully and their score, though
compared with others, is high, is in fact not so when evaluated
against the backdrop of their superior advantages - may even E
be lower…..
406. Those who advance merit contention, unfortunately, also
ignore the very basic fact - (though in other contexts, they
may be the first to accept it) - that the traditional method of
evaluating merit is neither scientific nor realistic. Marks in F
one-time oral or written test do not necessarily prove the worth
or suitability of an individual to a particular post, much less
do they indicate his comparative calibre. What is more, for
different posts, different tests have to be applied to judge the
suitability. The basic problems of this country are mass-
oriented. India lives in villages, and in slums in towns and G
cities. To tackle their problems and to implement measures to
better their lot, the country needs personnel who have
firsthand knowledge of their problems and have personal
interest in solving them. What is needed is empathy and not
mere sympathy. One of the major reasons why during all these H
968 SUPREME COURT REPORTS [2021] 15 S.C.R.

A years after Independence, the lot of the downtrodden has not
even been marginally improved and why majority of the
schemes for their welfare have remained on paper, is
perceptibly traceable to the fact that the implementing
machinery dominated as it is by the high classes, is indifferent
to their problems….”
B
There were observations earlier in the judgment of Chinnappa
Reddy, J, in K.C. Vasant Kumar (supra).
Anatole France had – in his ironic (and iconic) observations
remarked once, that
C “In its majestic equality, the law forbids rich and poor alike
to sleep under bridges, beg in the streets and steal loaves of
bread.”
41. The previous rulings in Vasant Kumar (supra), and the
comments of Dr. Amartya Sen in his work “Merit and Justice” were
D considered in some detail, in the recent ruling in B.K. Pavitra v. Union
of India46,
““Merit” must not be limited to narrow and inflexible criteria
such as one’s rank in a standardised exam, but rather must
flow from the actions a society seeks to reward, including the
E promotion of equality in society and diversity in public
administration.”
This court also noted that merit as we understand - i.e. performance
in standardised tests, is largely dependent upon neutral factors, which
discriminate in favour of those who are privileged.
F
42. The argument of merit thus ignores the inherent and situational
inequity between those who have no access to the means of achieving
the goal of meaningful education, i.e. to colleges and professional
institutions, based on competitive evaluations like tests, and those who
have all the wherewithal for it. Those from low-income groups cannot
G join coaching programmes, which hone candidates’ skills in succeeding
in an entrance test.
43. Overemphasis on merit therefore, ignores the burdens of the
past, assumes that everything is perfectly fair now and asks the question
46
H (2019) 16 SCC 129.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 969
& ANR. [S. RAVINDRA BHAT, J.]

of how the candidate fares in examinations that test only a narrow range A
of skills, mainly of linear-type thought. This decontextualized, neutrality-
based thinking glosses over historical and centuries old inequalities, the
burdens of which continue to plague those who labour under disadvantage,
and through the so called “level playing field” of a common exam, or
evaluation, privileges those who had, and continue to have, access to
B
wealth, power, premium education and other privileges, thus consolidating
these advantages. Merit is a resource attractor. Those with it, accumulate
more of it, more wealth and acquire more power. They use that money
and power to purchase more increments of merit for themselves and
their children.
C
44. The eminent legal thinker, Michael Sandel, in his Tyranny
of Merit, bemoans that the US has now become a sorting machine”that
promises mobility on the basis of merit but entrenches privilege and
promotes attitudes toward success corrosive of the commonality
democracy requires” (p. 155)He further says that first, all are told that
although the promise of a mobile society based on merit is better than a D
hereditary hierarchy, it is important to comprehend that this promise does
not come with any attendant promise to attenuate inequality in society.
On the contrary, this promise legitimizes “inequalities that arise
from merit rather than birth” (p. 161).Second, we learn that a system
that rewards the most talented is likely to undervalue the rest, either
E
explicitly or implicitly.
45. The context of these observations is to highlight that even
when reservations are provided in education, sufficient numbers of the
targeted students may not be able to achieve the goal of admission,
because of the nature of the entrance criteria. Equality of opportunity
F
then, to be real and meaningful, should imply that the necessary elements
to create those conditions, should also be provided for. It would therefore
be useful to examine – only by way of illustration- the schemes that
exist, for advancing educational opportunities, to Scheduled Caste (“SC”
hereafter)/ Scheduled Tribe (“ST” hereafter) and SEBC students.
G
46. Central government scholarships are available to students from
SC communities, for studies in Class IX and X, conditional to income of
parents/ guardians being less than ` 2,50,000 per annum. Eligible students
must also not be covered by any other central government scholarships
or funding, but may be eligible for the National Means-cum-Merit
H
970 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Scholarship Scheme.47 Under the pre matric scholarship scheme, day
scholars are provided with ` 225 per month for a period of ten months,
with a books and ad hoc grant, at ` 750 p.a. Hostellers receive ` 525 per
month, for a period of ten months, with a similar grant at ` 1000 p.a. For
2020-21 a total amount of ` 750 crores was allocated, of which ` 404.93
crores was released. The previous years, from 2015-16 to 2019-20, the
B
total allocated budget was ` 1,922 crores, of which ` 1,561.90 crores
was released to 121.85 lakh beneficiaries.48
47. Pre-matric scholarships are provided for students of Class I
to X, whose parents are manual scavengers, tanners and flyers, waste-
pickers, or persons engaged in hazardous cleaning, as defined under the
C Manual Scavengers Act, 2013.49 Hostellers are provided ` 700 per month,
while day scholars, ` 225 per month through the academic year (ten
months). Grants of ` 750 and ` 1000 p.a. are available to day-scholars
and hostellers respectively. Here too, selected candidates are excluded
from all other scholarships.
D 48. At the post matric level, the Central Sector Scholarship Scheme
of Top Class for SC Students, makes scholarships available to SC students
who have secured admission at IIMs, IITs, AIIMS, NITs, NLUs, other
central government institutions, institutions of national importance, etc.50
The scholarship covers tuition fee (capped at ` 2 lakhs per annum for
E private institutions), living expenses at ` 2220 per month, allowance for
books and stationery, and a computer and accessories (capped at ` 45,000,
as one time assistance). Eligibility criteria require total family income
from all sources to be less than ` 8,00,000 per annum. Under this scheme,
in 2020-21, the total budget allocation was ` 40 crores; of this, as on
47
Scheme List, Ministry of Social Justice and Empowerment, available at http://
F socialjustice.nic.in/SchemeList/Send/23?mid=24541 (Last accessed on 21.04.2021). See
also, Notification dated 06.09.2019, ‘Funding pattern for Pre-Matric Scholarship Scheme
for SC Students studying in Class 9 th and 10 th for the year 2019-20’, available at http:/
/socialjustice.nic.in/writereaddata/UploadFile/Scm_guidelines_06092019.pdf (Last
accessed on 21.04.2021).
48
Annual Report, 2020-2021, Department of Social Justice & Empowerment, Ministry
of Social Justice and Empowerment, p.50, available at http://socialjustice.nic.in/
G writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG. pdf, (Last accessed on
23.04.2021).
49
Ministry of Social Justice and Empowerment, Notification dated 2.04.2018, available
at http://socialjustice.nic.in/writereaddata/UploadFile/Pre-Matric_Scholarship_haz.pdf
(Last accessed on 21.04.2021).
50
Scheme List, Ministry of Social Justice and Empowerment, availableat http://
H socialjustice.nic.in/SchemeList/Send/27?mid=24541 (Last accessed on 21.04.2021).
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 971
& ANR. [S. RAVINDRA BHAT, J.]

31.12.2020 ` 24.03 crores were spent on 1550 beneficiaries.51 For the A
previous years, i.e. 2016-17 to 2019-2020, the total allocated budget was
` 131.50 crores, with a total expenditure of ` 127.62 crores, on 6676
beneficiaries.52
49. Similar pre-matric and post-matric scholarships are also
available to ST students. At the state level too, various such scholarship B
schemes are made available to SC and ST students, and students
belonging to minority communities and backward classes. 53 Similar pre-
matric and post-matric scholarships are also available to ST students. At
the state level too, various such scholarship schemes are made available
to SC and ST students, and students belonging to minority communities
and backward classes.54 In respect of the post-matric scholarship for C
ST students, for the financial year 2020-21, an amount of ` 1833 crores
was budgeted, out of which ` 1829.08 crore was released.55 For the
pre-matric scholarship for ST students, for the financial year 2020-21,
an amount of ` 250 crores was budgeted, out of which ` 248.9 crores
were released. D
50. Under the Central Scholarship Scheme of Top-Class for ST
students, in the year 2020-2021, a total budget of ` 29.31 Crores was
allocated, out of which ` 20 Crore was disbursed among 2449 (1973
male and 512 female) beneficiaries.56 In the year 2019-2020, a total
budget of ` 20 Crores was allocated, with disbursement of ` 19.1 Crores
to 1914 beneficiaries.57 The State of Telangana had the highest number E
of beneficiaries, at 988, followed by Rajasthan at 363 and Andhra Pradesh
at 147. The States of Chattisgarh and Madhya Pradesh had 69 and 49
beneficiaries respectively.58

51
Annual Report, 2020-2021, pg. 68, Department of Social Justice & Empowerment, F
Ministry of Social Justice and Empowerment, available athttp://socialjustice.nic.in/
writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf , (Last accessed on
23.04.2021)
52
Ibid
53
See generally, https://pib.gov.in/PressReleaseP age.aspx?PRID=1593767 (Last
accessed on 21.04.2021).
54
See generally, https://pib.gov.in/PressReleasePage.aspx?PRID=1593767(Last accessed G
on 21.04.2021).
55
Post-Matric Scholarship, Ministry of Tribal Affairs, data available at
https://dashboard.tribal.gov.in/(Last accessed on 23.04.2021).
56
Ibid.
57
Ibid.
58
Ibid.
H
972 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 51. Under the National Fellowship Scheme for ST students (at
higher levels of education such as Ph.D., M.Phil), an amount of ` 90.78
Cr was disbursed to 2525 fellowship scholars. 59 Under the National
Overseas Scholarship for ST students, for post-graduate study abroad,
in the year 2020-21, an amount of ` 4.76 crore was disbursed to 30
beneficiaries.60
B
52. In respect of Other Backward Classes (OBCs), central
government pre-matric and post-matric (Class 11-12th and above) are
available, for students whose parents’/guardian’s income from all sources
does not exceed ` 2.5 lakhs. Under the pre-matric scholarship, ` 100/-
per month for 10 months is given to day scholars and ` 500/- per month
C for 10 months is given to hostellers. For the year 2020-2021 (as on
31.12.2020) a total budget of ` 175 crore was allocated, out of which
` 118.09 crore was provided to 200 lakh beneficiaries. In the previous
years, from 2015-16 to 2019-20, a total of ` 759.9 crore was allocated,
out of which ` 701.42 Crores was released to 463.08 lakh beneficiaries.61
D 53. Under the post-matric scholarship for OBCs, for the year
2020-2021, a total budget of ` 1100 crore was allocated, out of which, `
802.27 crores were provided to 80 lakh beneficiaries. In the previous
years, from 2015-16 to 2019-20, a total budget of ` 5,035.75 crore was
allocated, out of which ` 4,827.89 crore was released for 207.96 lakh
E beneficiaries.62
54. A national fellowship is also available to OBC students at the
degree levels of M.Phil and Ph.D. Fellowships are awarded to research
students, at ` 31,000 per month for junior research fellows and at
` 35,000 per month for senior research fellows. Under this fellowship,
F for the year 2020-21, a budget of ` 45 crore was allocated, out of which
` 18 crore is expected to be provided to 2900 anticipated beneficiaries.
In the previous years, from 2016-17 to 2019-20, ` 149.5 crore was
allocated, out of which approx. ` 154 crore was provided to 7,200
beneficiaries (5,100 provisional).63
59
Ibid.
G 60
Ibid.
61
Annual Report, 2020-2021, Department of Social Justice & Empowerment, Ministry
of Social Justice and Empowerment, p. 104-105, available at http://socialjustice.nic.in/
writereaddata/UploadFile/ANNUAL_REPORT_2021_ENG.pdf(Last accessed on
23.04.2021).
62
Ibid., at p. 105.
63
H Ibid., at p. 107-108.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 973
& ANR. [S. RAVINDRA BHAT, J.]

55. A report of the NITI Aayog64, based on data from the 2001 A
Census, analysed that the gap between literacy rates of the general
population and that of the SC population had not reduced over the years.
The rate of school drop-outs was seen as a crucial indicator of lack of
educational development. The dropout rates for SC children were seen
to be very high – 32.7% in Classes I to V; 55.2% in Classes I to VIII;
B
and 69.1% in classes I to X in 2004–05. The gap between the SC
population and the general category was seen to increase at higher levels
of schooling. Data on dropout rates for ST students in the year 2006-07
shows that the primary level (Class I-V), 33.2% ST students drop out.
At the elementary level (Class I – VIII), this increases to 62.5%, while
at the secondary level (Class I- X), the drop-out rate is 78.7%.65 For the C
same time frame, the drop out rates for SC students at the primary level
was 36%; at the elementary level, 53.1%; and at the secondary level,
69%.66According to the Annual Report (Periodic Labour Force Survey)
for the year 2018-19, the literacy rate for age 7 and above was 69.4%
for STs, 72.2% for SCs, 77.5% for OBCs, and 85.9% for others.67
D
56. This data makes a case for an intensive study into diverse
areas such as the adequacy or otherwise of scholarships, quantum
disbursed, eligibility criteria (the maximum family income limit of
` 2,50,000/- possibly excludes large segments of beneficiaries, given
that even Group D employment in the Central Government can result in
exclusion of any scholarships to children of such employees), and E
reconsideration about introducing other facilities, such as incentivising
scholarships, grants and interest free or extremely low interest education
loans to widen the net of recipients and beneficiaries. States and the
Union government may also revisit the threshold limits and their tendency
to exclude otherwise deserving candidates. For instance, even if an SC/ F
64
Available at https://niti.gov.in/planningcommission.gov.in/docs/plans/planrel/fiveyr/11th/
11_v1/11v1_ch6.pdf (Last accessed on 21.04.2021).
65
Reports and Publications, Ministry of Statistics and Program Implementation, available
athttp ://mo spi. nic. in /s ites/d efau lt/file s/rep orts _and_p ublicati on /
cso_ research_an d_p ublicatio n_ unit/COSIOIESIOTS DV OL-2 /
Pages%20from%20educations-1.13.pdf (Last accessed on 22.04.2021).
66
Reports and Publications, Ministry of Statistics and Program Implementation, available
G
athttp ://mo spi. nic. in /s ites/d efau lt/file s/rep orts _and_p ublicati on /
cso_ research_an d_p ublicatio n_ unit/COSIOIESIOTS DV OL-2 /
Pages%20from%20educations-1.12.pdf (Last accessed on 22.04.2021).
67
Table 49, Annual Report (Periodic Labour Force Survey) 2018-19, available at http://
mospi.nic.in/sites/default/files/publication_reports/
Annual_Report_PLFS_2018_19_HL.pdf, p. A-363 (Last accessed on 22.04.2021). H
974 SUPREME COURT REPORTS [2021] 15 S.C.R.

A ST or SEBC household has an income of ` 6,00,000/- year, the denial of
scholarship to a deserving student from that background cannot equate
her or him with another candidate, whose family income might be four
times that amount, and who might be able to pay annual fees for medical
education, in private educational institutions. In other words, there needs
to be constant scrutiny, review and revision of these policies and their
B
effectiveness, besides the aspect of increasing funding, etc.
The wider possibilities of affirmative action- USA, South Africa
and Canada
The US Experience
C 57. In the US, in Fullilove v. Klutznick,68 the US Supreme Court
rejected a challenge to the constitutionality of a federal law demanding
preferential treatment of minority-owned businesses through a racial
quota system. The challenged law69 prescribed pre-conditions for receipt
of state and local government public works grants upon the private entity’s
assurance that at least 10% of the amount of each grant would be spent
D on contracts with minority business enterprises (MBEs). Public contracts
normally were awarded to the lowest bidder; the provision operated to
grant public works contracts to the lowest bidder who complied with the
10% set-aside (quota) goal. The executive policy framed pursuant to
the Act imposed upon those receiving grants and their prime contractors
E an affirmative duty to seek out and employ available, qualified, and bona
fide MBEs. As the objective of the MBE provision was to overcome
longstanding barriers to minority participation in public contracting
opportunities, the set-aside provision i.e. condition favoured a higher MBE
bid as long as the higher price reflected inflated costs resulting from past
disadvantage and discrimination. The administrative program therefore
F authorized the Economic Development Agency to waive the minority
participation requirement where a high minority business bid is not
attributable to the present effects of past discrimination. The plaintiffs in
Fullilove were non-minority associations of construction contractors and
subcontractors. They alleged that enforcement of the Public Works Act’s
MBE requirement caused economic injury to the non-minority business
G
plaintiffs. In addition, the plaintiffs asserted that the MBE 10% quota
provision violated the equal protection clause of the fourteenth amendment
and the equal protection element of the due process clause of the fifth
amendment.
68
448 U.S. 448 (1980).
69
H Section 103(f)(2), Public Works Employment Act of 1977
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 975
& ANR. [S. RAVINDRA BHAT, J.]

58. The US Supreme Court held that the interference with the A
business opportunities of non-minority firms caused by the 10% set-
aside program did not render the Act constitutionally defective. The Court
rejected the alleged equal protection violation on the grounds that the
Act ensured equal protection of the laws by providing minority businesses
an equal opportunity to participate in federal grants. The later decision
B
Adarand Constructors, Inc. v. Penal70 held that federal affirmative
action programs are now subject to strict scrutiny, just as state and local
programs were since 1989. The court held that “federal racial
classifications, like those of a state, must serve a compelling
governmental interest, and must be narrowly tailored to further that
interest.” C
South Africa
59. Under South Africa’s Constitution of 1998, Chapter 2, Article
9(3) dealing with “Equality” reads thus:
“The state may not unfairly discriminate directly or indirectly D
against any one on one or more grounds, including race,
gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth”.
Chapter 10 says that public administration “must be broadly E
representative of the South African people, with objectivity
[and] fairness,” and it needs “to redress the imbalances of
the past to achieve broad representation”.
60. In furtherance of these provisions, in October 1998, the
Employment Equity Act was legislated. The Act starts with the premise F
that “pronounced disadvantages” created by past policies cannot be
redressed by a simple repeal of past discriminatory laws, and there was
a need to enforce “employment equity to redress the effects of
discrimination,” and “achieve a diverse workforce broadly
representative” of the people of South Africa. The Act has two purposes:
(1) to promote “equal opportunity and fair treatment in employment G
through the elimination of unfair discrimination,” and (2) to implement
“affirmative action measures to redress the disadvantages in
employment experienced by designated groups, in order to ensure
their equitable representation in all occupational categories and
70
515 U.S. 200 (1995) H
976 SUPREME COURT REPORTS [2021] 15 S.C.R.

A levels in the workforce.” Designated groups are defined as black people
(who include Africans, Coloureds and Indians), women, and people with
disabilities.
61. Affirmative action measures for designated groups must include
identification and removal of barriers adversely affecting them, actions
B to further diversity, reasonable accommodations to ensure equal
opportunity and equitable representation, and efforts at training to retain
and develop them. Representation is extended to all occupational
categories and levels in the workforce and this is to be ensured through
preferential treatment and numerical goals, but not with quotas. The
Employment Equity Plan itself must state the objectives to be achieved
C each year, the affirmative action measures with timetables and strategies
to be implemented to accomplish them, and the procedure to evaluate
the plan. Each plan ought not to be for a period of less than one year, and
not longer than five years. (At the expiration of one plan, another may
follow.) While preferential treatment is meant for only suitably qualified
D people, such suitability may be a product of formal qualifications, prior
learning, relevant experience, or capacity to acquire, within a reasonable
time, the ability to do the job.
62. Under the Employment Equity Act, employers must consult
with their employees and representative trade unions, after which an
E audit of employment policies and practices in the workplace must be
undertaken. Analysis of the information garnered in the audit is meant to
assist in developing demographic profiles of the work force, and identifying
barriers to the employment or advancement of designated groups. Under-
representation of designated groups in all categories of work must also
be identified. Quotas are expressly prohibited under Section 15(3) of the
F Act. In 2003, the Black Economic Empowerment Act was legislated.
This Act has as its purpose the “economic empowerment of all black
people, including women, workers, youth, people with disabilities
and people living in rural areas”. To measure compliance with black
economic empowerment (BEE) requirements, the Department of Trade
G and Industry uses a balanced scorecard, consisting of three broad
components. The scorecard will be used for government procurement,
public-private partnerships, sale of state-owned enterprises, when licenses
are applied for, and for any other relevant economic activity. Strategies
aimed at levelling the playing field may include the elimination of
employment barriers such as adapting testing requirements to compensate
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 977
& ANR. [S. RAVINDRA BHAT, J.]

for educational disadvantage or lack of work experience71; reviewing A
recruitment, selection and promotion procedures to ensure fairness in
job competition 72; accelerated and corrective training; and the
transformation of work environments that exclude or otherwise
disadvantage designated groups, e.g. measures aimed at integrating career
and family responsibilities73 (flexible work schedules, child care structures,
B
facilitating career breaks, etc).
Canada
63. In Canadian National Railway Co v. Canada (Canadian
Human Rights Commission)74, Dickson J. reasoned that the purpose of
an affirmative action programme is to break a continuing cycle of C
systemic discrimination. The goal is not to compensate past victims or
even to provide new opportunities for specific individuals who have been
unfairly refused jobs or promotion in the past, but to ensure that future
applicants and workers from the affected groups will not face the same
insidious barriers that blocked their forebears.
D
64. In Ontario (Human Rights Commission) v Ontario (Ministry
of Health)75, the Ontario Court of Appeal interpreted the affirmative
action provisions of the Ontario Human Rights Code 1990 and the
Canadian Human Rights Act 1985, to reinforce the important insight
that substantive equality requires positive action to ameliorate the
conditions of disadvantaged groups. One of the important purposes of E
the provisions is to protect affirmative action programmes from being
challenged as violating the formal equality provisions contained elsewhere
in the Code or Act. Affirmative action, according to the court, is aimed
at
“achieving substantive equality by enabling or assisting F
disadvantaged persons to acquire skills so that they can
compete equally for jobs on a level playing field with those
71
Durban City Council (Physical Environment Service Unit) v. Durban Municipal
Employees’ Society (DMES) (1995) 4 ARB 6.9.14.
72
Durban Metro Council (Consolidated Billing) v. IMATU obo Van Zyl and Another
G
(1998) 7 ARB 6.14. 1.
73
Kalanke v. Frete Hansestadt Bremen Case C-450/93 [1996] 1 CMLR 175 (ECJ) at
181.
74
[1987] 1 SCR 1114 at 1143.
75
(1994) 21 CHRR (Ont CA) D/259 at D/265, quoting with approval Sheppard
‘Litigating the relationship between equity and equality’ (Study paper of the Ontario
Law Reform Commission) Toronto (1993) 28. H
978 SUPREME COURT REPORTS [2021] 15 S.C.R.

A who do not have the disadvantage. The purpose of s. 14(l) is
not simply to exempt or protect affirmative action programs
from challenge. It is also an interpretative aid that clarifies
the full meaning of equal rights by promoting substantive
equality”. 76
B Possibilities for Affirmative Action other than Reservation in
India
65. The US practice of encouraging diversity by incentivising it
by for instance, the award of government contracts to firms that have a
good record of recruiting members from racially or ethnically
C disadvantaged groups, has found echo in policies in Madhya Pradesh.
Other States such as UP, Bihar, Karnataka, AP and Telangana have
followed a policy of affirmative action in awarding contracts and in that
manner protecting SC and ST entrepreneurs’ entry into trade, business
and other public works as contractors. Recently, Karnataka enacted a
legislation, namely, the Karnataka Transparency in Public Procurement
D (Amendment) Act, 2016, which reserves 24.1% for SC and ST contracts
in all Government works, public contracts up to ` 50 lakh. This law aims
to ensure the presence of SC and ST contractors and to get the award
of Government work without rigid tender process. Orissa, too provides
for a price preference to SC/ST entrepreneurs to the extent of 10% of
E contracts of a certain value.
66. There is empirical evidence, in India, in different sectors that
access to productive employment is confined to a few sections of the
workforce, among the most backward of classes, while the rest eke out
a living in the informal economy. The faultlines of division between those
F who are employed in good jobs and those who are “excluded” run deep,
and are based on caste, religion, region, and other sectarian divisions all
of which overlap with class and gender, such that even within the small
section of the workforce which is productively employed in decent jobs,
some groups are better represented than others, placed higher than others,
while some castes and communities are practically absent in the top
G echelons of the private corporate sector. While private employers firmly
believe that jobs should be allocated on the basis of individual merit,
their views about how merit is distributed overlaps strongly with existing
stereotypes around caste, religion, gender and regional differences.
76
(1994) 21 CHRR (Ont CA) D/259 at D/265.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 979
& ANR. [S. RAVINDRA BHAT, J.]

67. A method by which the private sector can substantively A
contribute to alleviate discrimination and inequality, is through its corporate
social responsibility (CSR) programmes. CSR has been compulsory in
India since 2013. These initiatives have taken two major forms: education
of the under-privileged either through special schools or other programmes
to support school-going children, and support to poor women through
B
home-based work or micro-finance. While these measures are significant,
there are other spheres where CSR could be directed, with even greater
benefits. The definition and scope of CSR needs to be broadened to
include measures to counteract the natural tendencies towards exclusion
of certain groups. Private sector managements need to show sensitivity
to societal patterns of exclusion and must consciously make an attempt C
not to fall prey dominant social stereotypes, which penalize people due
to their birth into stigmatizing jobs, even if they might be individually
qualified and competent.
68. In addition to being sensitized to the problem of under-
representation at the time of employment (by actively pursuing policies D
to promote and/or by equal opportunity employment policies), private
companies can also pay attention to supplier diversity in matters of
procurement. By encouraging supplies from firms owned by SCs, STs,
or those from backward class or deprived classes, the large organized
private sector in India could give a huge boost to the micro, medium and
small enterprises owned by entrepreneurs from such marginalized groups. E
Indeed, this is also one of the planks used in the USA, for instance,
where minority-owned businesses are not only given active financial
incentives by the government, but larger firms are expected to source a
part of their supplies from minority-owned businesses. Given that
typically, SC, ST and backward class individuals owned micro enterprises F
are likely to employ greater proportion of persons from these communities
(as compared to enterprises owned by upper-caste groups), an active
supplier diversity programme would also boost employment.
69. In view of all these developments, it is time that the states and
the Union government gather data about the extent and reach of the G
existing schemes for employment, and in the field of education, take
steps to ensure greater access, by wherever necessary, increasing funding,
increasing the number and extent of coverage of scholarships, and setting
up all manner of special institutions which can train candidates aspiring
for higher education, to increase their chances of entry in admission
H
980 SUPREME COURT REPORTS [2021] 15 S.C.R.

A tests, etc. Likewise, innovative employment incentives to the private
sector, especially in the manner of employment in contracts or projects
awarded by the state or its instrumentalities, need to be closely examined
and implemented. These welfare measures can also include giving tax
incentives to schemes that fund scholarships and easy (or interest free)
loans to SC, ST and SEBC students, which can enhance their access to
B
educational institutions. Today, even if an SC, or SEBC candidate secures
admission in a common entrance examination for a medical seat, in a
private institution, the amounts charged as annual fees would exclude
most of such candidates (even those who are ineligible to government
scholarships, as being marginally above the threshold of ` 2,50,000/- per
C annum annual family income). Other incentives, such as awarding marks
while evaluating private entities for the purpose of public tenders, and
giving them appropriate scores or advantage, if their workforce employs
defined percentages of SC/ST or SEBC individuals, etc. too would make
a substantial difference.
D Re Point No (2) Whether Maharashtra State Reservation (of
seats for admission in educational institutions in the State and for
appointments in the public services and posts under the State) for
Socially and Educationally Backward Classes (SEBC) Act, 2018
as amended in 2019 granting 12% and 13% reservation for Maratha
community in addition to 50% social reservation is covered by
E exceptional circumstances as contemplated by Constitution Bench
in Indra Sawhney’s case?
and Re Point No (3) Whether the State Government on the
strength of Maharashtra State Backward Commission Report chaired
by M.C. Gaikwad has made out a case of existence of extraordinary
F situation and exceptional circumstances in the State to fall within
the exception carved out in the judgment of Indra Sawhney?
70. I agree, with respect, with the reasoning and conclusions of
Ashok Bhushan, J. on the above two points of reference and have nothing
to add.
G Re: Point No. 4 Whether Article 342 of the Constitution
abrogates State power to legislate or classify in respect of “any
backward class of citizens” and thereby affect the federal policy/
structure of the Constitution of India? And
Point No. 5 Whether, States’ power to legislate in relation to
“any backward class” under Articles 15(4) and 16(4) is anyway
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 981
& ANR. [S. RAVINDRA BHAT, J.]

abridged by Article 342(A) read with Article 366(26c) of the A
Constitution of India?
I.Relevant provisions in consideration
71. Both the above points of reference, by their nature, have to be
and therefore, are considered together. The Constitution (123 rd
Amendment) Bill, 2017, after its passage became the Constitution (One B
Hundred and Second Amendment) Act, 2018; it received the assent of
the President of India and came into force on 15.08.2018. The amendment
inserted Articles 338B and 342A. These are reproduced below:
“338B. (1) There shall be a Commission for the socially and
educationally backward classes to be known as the National C
Commission for Backward Classes.
(2) Subject to the provisions of any law made in this behalf
by Parliament, the Commission shall consist of a Chairperson,
Vice-Chairperson and three other Members and the conditions
of service and tenure of office of the Chairperson, Vice- D
Chairperson and other Members so appointed shall be such
as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members
of the Commission shall be appointed by the President by
warrant under his hand and seal. E
(4) The Commission shall have the power to regulate its own
procedure.
(5) It shall be the duty of the Commission— (a) to investigate
and monitor all matters relating to the safeguards provided
for the socially and educationally backward classes under F
this Constitution or under any other law for the time being in
force or under any order of the Government and to evaluate
the working of such safeguards;
(b) to inquire into specific complaints with respect to the
deprivation of rights and safeguards of the socially and G
educationally backward classes;
(c) to participate and advise on the socio-economic
development of the socially and educationally backward
classes and to evaluate the progress of their development
under the Union and any State; H
982 SUPREME COURT REPORTS [2021] 15 S.C.R.

A (d) to present to the President, annually and at such other
times as the Commission may deem fit, reports upon the
working of those safeguards;
(e) to make in such reports the recommendations as to the
measures that should be taken by the Union or any State for
B the effective implementation of those safeguards and other
measures for the protection, welfare and socio-economic
development of the socially and educationally backward
classes; and
(f) to discharge such other functions in relation to the
C protection, welfare and development and advancement of the
socially and educationally backward classes as the President
may, subject to the provisions of any law made by Parliament,
by rule specify.
(6) The President shall cause all such reports to be laid before
D each House of Parliament along with a memorandum
explaining the action taken or proposed to be taken on the
recommendations relating to the Union and the reasons for
the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any
E matter with which any State Government is concerned, a copy
of such report shall be forwarded to the State Government
which shall cause it to be laid before the Legislature of the
State along with a memorandum explaining the action taken
or proposed to be taken on the recommendations relating to
the State and the reasons for the non-acceptance, if any, of
F any of such recommendations.
(8) The Commission shall, while investigating any matter
referred to in sub-clause (a) or inquiring into any complaint
referred to in sub-clause (b) of clause (5), have all the powers
of a civil court trying a suit and in particular in respect of the
G following matters, namely:—
(a) summoning and enforcing the attendance of any person
from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
H (c) receiving evidence on affidavits;
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 983
& ANR. [S. RAVINDRA BHAT, J.]

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

(9) The Union and every State Government shall consult the
Commission on all major policy matters affecting the socially
and educationally backward classes.”
xxxxxx xxxxxx xxxxxx C
“342A. (1) The President may with respect to any State or
Union territory, and where it is a State, after consultation
with the Governor thereof, by public notification, specify the
socially and educationally backward classes which shall for
the purposes of this Constitution be deemed to be socially D
and educationally backward classes in relation to that State
or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the
Central List of socially and educationally backward classes
specified in a notification issued under clause (1) any socially
E
and educationally backward class, but save as aforesaid a
notification issued under the said clause shall not be varied
by any subsequent notification.”
72. Article 366(26C), which defined “socially and educationally
backward classes “too was inserted; it is reproduced below, for the sake
F
of reference:
‘366. Definitions.-In this Constitution, unless the context
otherwise requires, the following expressions have the
meanings hereby respectively assigned to them, that is to say-
(1) …. G
xxxxxx xxxxxx xxxxxx
(26C) “socially and educationally backward classes” means
such backward classes as are so deemed under article 342A
for the purposes of this Constitution;’
H
984 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 73. The Bill which was moved in Parliament by which the
102ndamendment was introduced, interalia, stated as follows:
“STATEMENT OF OBJECTS AND REASONS
xxxxxx xxxxxx xxxxxx
B 2. Vide the Constitution (Eighty-ninth Amendment) Act, 2003,
a separate National Commission for Scheduled Tribes was
created by inserting a new article 338A in the Constitution.
Consequently, under article 338 of the Constitution, the
reference was restricted to the National Commission for the
Scheduled Castes. Under clause (10) of article 338 of the
C Constitution, the National Commission for Scheduled Castes
is presently empowered to look into the grievances and
complaints of discrimination of Other Backward Classes also.
3. In the year 1992, the Supreme Court of India in the matter
of Indra Sawhney and others Vs. Union of India and others
D (AIR 1993, SC 477) had directed the Government of India to
constitute a permanent body for entertaining, examining and
recommending requests for inclusion and complaints of over-
inclusion and under-inclusion in the Central List of Other
Backward Classes. Pursuant to the said Judgment, the
E National Commission for Backward Classes Act was enacted
in April, 1993 and the National Commission for Backward
Classes was constituted on 14th August, 1993 under the said
Act. At present the functions of the National Commission for
Backward Classes is limited to examining the requests for
inclusion of any class of citizens as a backward class in the
F Lists and hear complaints of over-inclusion or under-inclusion
of any backward class in such lists and tender such advice to
the Central Government as it deems appropriate. Now, in order
to safeguard the interests of the Socially and Educationally
Backward Classes more effectively, it is proposed to create a
G National Commission for Backward Classes with constitutional
status at par with the National Commission for Scheduled
Castes and the National Commission for Scheduled Tribes.
4. The National Commission for the Scheduled Castes has
recommended in its Report for 2014-15 that the handling of
the grievances of the Socially and Educationally Backward
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 985
& ANR. [S. RAVINDRA BHAT, J.]

Classes under clause (10) of article 338 should be given to A
the National Commission for Backward Classes.
5. In view of the above, it is proposed to amend the Constitution
of India, inter alia, to provide the following, namely:—
(a) to insert a new article 338 so as to constitute the National
Commission for Backward Classes which shall consist of a B
Chairperson, Vice-Chairperson and three other Members. The
said Commission will hear the grievances of Socially and
Educationally Backward Classes, a function which has been
discharged so far by the National Commission for Scheduled
Castes under clause (10) of article 338; and C
(b) to insert a new article 342A so as to provide that the
President may, by public notification, specify the Socially and
Educationally Backward Classes which shall for the purposes
of the Constitution be deemed to be Socially and
Educationally Backward Classes.” D
II. Contentions of parties
74. The appellants argue that the Maharashtra SEBC Act (which
was enacted and brought into force on 30.11.2018), could not have been
enacted, and is clearly void. It is argued that on a plain reading of Article
342A read with Article 366(26C), it is clear that States were denuded of E
their power to identify backward classes and the task was to be performed
exclusively by the National Commission for Backward Classes set up
under Article 338B (hereafter “NCBC”). Mr. Arvind Datar, Mr. Shyam
Divan and Mr. Gopal Sankaranarayanan, learned senior counsel
emphasized that the expression “for the purposes of this Constitution” F
under Article 366(26C) and Article 342A(1) can only imply that the
States’ jurisdiction and power to identify a community as a backward
class stood denuded. Consequently, it is only upon the recommendation
of the NCBC that any community can henceforth be included in the list
of SEBCs. It was submitted that by virtue of Article 342A, even the
Union or the Central Government ceases to have any power to modify, G
add to or delete from the list so notified under Article 342A(1). It is
Parliament alone which can make such modification, deletion or alteration.
The term ‘Central List’ in Article 342(2) is not the list published by the
Union for the affairs of the Union. The Constitution has used the word
“Union” wherever the reference is made to the Government of India or
H
986 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Central Government, i.e., Articles 53, 73, 79, 309, List I of Schedule VII
whereas the word ‘Central Government’ has been used recently in certain
amendments which is not the expression used in the Constitution originally
adopted. Thus, the reference to “Central List” means only the List in
relation to states and union territories, for the purpose of the Constitution
notified under Article 342A (1).
B
75. Learned senior counsel argued that the decision in Indra
Sawhney (supra) 77 had required the setting up of permanent
Commissions for identifying communities or castes such as backward
classes to enable their notification by their respective governments. In
the light of this recommendation and having regard to the principal existing
C provision under Article 340, Parliament had enacted the National
Commission for Backward Classes Act, 1993 (hereafter “the NCBC
Act”). That enactment used the expression, “Central list” in Section
2(c) 78.
76. Learned counsel for the appellants submitted that while
D amending the Constitution, the expression “Central List” meant the List
to be published by the President on the aid and advice of the Council of
Ministers, after consultation with the Governors, i.e., the aid and advice
of the State Governments. Thus, having regard to plain language of Article
366(26C) and Article 342A as well as the provisions in Article 338B (7),
E (8) and (9), there is no question of the State Governments or State
Legislatures retaining any power to identify backward classes. That
power is with the President.
77. It was submitted by Mr. Gopal Sankaranarayan, learned senior
counsel that the object which impelled the Constitution
F (102ndAmendment) Act, 2018 appears to be to set up a national body for
evolving scientific criteria of uniform application with regard to the
identification of communities as backward classes. It was submitted
that the frequent demands by various communities to be included in the
list of backward classes to garner/gain access to State funded institutions
and for public employment meant that States either succumb to such
G 77
Paras 847, 855 (c) and 859 (13)- SCC report.
78
Defined as “lists”means lists prepared by the Government of India from time to time
for purposes of making provision for the reservation of appointments or posts in
favour of backward classes of citizens which, in the opinion of that Government, are not
adequately represented in the services under the Government of India and any local or
other authority within the territory of India or under the control of the Government of
H India;
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 987
& ANR. [S. RAVINDRA BHAT, J.]

pressure or apply ad-hoc criteria and set up ad-hoc bodies which did A
not or could not consider issues in a dispassionate and holistic manner.
Learned counsel relied upon the decision of this Court in Ram Singh
&Ors. v. Union of India (supra)79 to say that demands made by such
communities led to States providing special reservation, which became
the subject matter of judicial scrutiny.
B
78. Learned counsel also referred to agitations for inclusion of
communities in other States such as Rajasthan which also led to repeated
litigation. It was, therefore, argued that to avoid these instances, and to
ensure that a national standard for considering the relevant indicia for
backwardness is constitutionally applied, an amendment to the
Constitution was made. Learned counsel urged that the position adopted C
by the States, i.e., that they were not denuded of executive and legislative
power and that the amendment only sought to give additional constitutional
status to the existing NCBC is unfounded. It was pointed out that before
the coming into force of the Constitution (102ndAmendment) Act, 2018,
Article 340 existed under the original Constitution. Parliament, in exercise D
of its legislative power, enacted the NCBC Act. The NCBC had existed
for 27 years and had conducted surveys and identified several
communities as backward. The lists published by it were in existence
and were in use by the Central Government for its purposes, including in
public employment. Undoubtedly, not all communities included in the
States’ lists were part of the NCBC list. However, the list was broadly E
common to a large extent. Learned counsel emphasized that there was
no necessity for bringing any constitutional amendment if the new
Commission were to be given constitutional status and the lists published
by it, made binding only on the Central Government which was to acquire
such high degree of status that it could be modified by Parliament alone. F
It was submitted that surely, State interference with the Central list did
not warrant such a drastic measure as a constitutional amendment.
79
“54. The perception of a self-proclaimed socially backward class of citizens or even
the perception of the “advanced classes” as to the social status of the “less fortunates”
cannot continue to be a constitutionally permissible yardstick for determination of
backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution.
G
Neither can any longer backwardness be a matter of determination on the basis of
mathematical formulae evolved by taking into account social, economic and educational
indicators. Determination of backwardness must also cease to be relative; possible
wrong inclusions cannot be the basis for further inclusions but the gates would be
opened only to permit entry of the most distressed. Any other inclusion would be a
serious abdication of the constitutional duty of the State.” H
988 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 79. Mr. Sankaranarayanan submitted that although there are
passages in the report of the Select Committee of the Rajya Sabha,
Parliament had discussed the amendment and taken into account the
views of certain individuals; the fact remains that it is the text of the
Constitution as amended, which is to be interpreted. Learned counsel
relied upon the decisions reported as State of Travancore-Cochin v.
B
Bombay Company Ltd80; Aswini Kumar Ghose & Anr. v. Arabinda
Ghose & Anr.81 and P.V. Narasimha Rao v. State82. He also referred to
the decision in Sanjeev Coke Manufacturing v. Bharat Coking Coal
Ltd. &Anr83.It was submitted that the consistent opinion of this Court
has been the one adopted in Pepper v. Hart84, which permits reference
C to the statements made in the House at the time of the introduction of
Bill as an aid to construction of legislation which is ambiguous or obscure,
and not in any other circumstances. It was thus submitted that the
intention of the amendment was to ensure that a uniform standard and
one aware of looking at backwardness in an objective manner, was to
be adopted and applied, for the purposes of the Constitution. This also
D
was aimed at eliminating the mischief that led to the introduction of
communities as a consequence of protests – having been triggered by
political considerations on the eve of elections.
80. The submissions articulated on behalf of the respondent States
by Mr. Mukul Rohatgi, Mr. Kapil Sibal, Dr. A.M. Singhvi and Mr.
E Naphade, Additional Advocates General and Standing Counsel appearing
on behalf of the various States, was that the interpretation suggested by
the appellants is drastic. It was emphasized that the States’ responsibility
under Article 15(4) and 16(4) to make special provisions including
reservations is undeniable. In the absence of any amendment to these
F provisions, learned counsel submitted that the Constitution
(102ndAmendment) Act, 2018 cannot be so interpreted as to denude the
States of their powers altogether. Learned counsel submitted that
pursuant to the recommendations and directions in Indra Sawhney
(supra), not only was the NCBC Act enacted; in addition, different
States also set up permanent commissions to identify communities as
G backward classes for the purpose of Constitution. Those Commissions
80
1952 SCR 1112
81
AIR 1953 SC 75
82
(1998) 4 SCC 626.
83
(1983) 1 SCR 1000.
84
H 1993 (1) All. ER 42.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 989
& ANR. [S. RAVINDRA BHAT, J.]

were set up in exercise of legislative powers traceable to one or the A
other Entry in List II of the Seventh Schedule to the Constitution. The
plenary legislative power of the States remains unaltered. That being
the case, this Court should not accept the appellants’ submission that
Articles 338B and 342A place fetters upon the exercise of such legislative
power as well as executive power of the States.
B
81. Learned counsel submitted that this Court should closely
examine the contents of the report of the Select Committee of the Rajya
Sabha, and the statements made by the Government, particularly that
the power and jurisdiction of the States would remain unaffected. It was
further urged that this Court can and should and ought to have looked
into the contents of these reports to discern the true meaning and intent C
behind the Constitution (One Hundred and Second Amendment) Act,
2018, which was not to disrupt the existing legislative arrangement
between the Centre and the State. In this regard, learned counsel placed
reliance upon the judgment of this Court in Kalpana Mehta and Ors. v.
Union of India and Ors.85, and submitted that the Court can take aid D
of reports of Parliamentary Committees for the purpose of appreciating
the historical background of statutory provisions, and also to resolve the
ambiguity in the legislation.
82. It was submitted that if the matter were to be considered in
the true perspective and the report of the Select Committee, examined E
as an aid to interpretation of the Constitution (102ndAmendment) Act,
2018, especially Article 342A, it would be apparent that the Parliament
never intended, by the amendment, to disturb the existing order and denude
the States of their executive or legislative power to identity backward
classes while making special provisions under Articles 15(4) and 16(4).
It was submitted that Indra Sawhney (supra) only created a larger F
movement for the setting-up of Commissions by the Union and the States.
Learned counsel emphasized that even while identifying the communities
for the purpose of the Central List, the views of the States were always
ascertained. Parliament merely sought to replicate the amendment by
which collection of data has been undertaken under Article 338 (in relation G
to SCs). The introduction of Article 338B was in line with the introduction
of Articles 338A and 338 – which enables the setting-up of National
Commissions for Scheduled Castes and Scheduled Tribes(the latter
through another amendment which was brought into force on 19.02.2004).
85
(2018) 7 SCC 1 H
990 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 83. It was submitted that Articles 366(26C), 338B and 342A(1)
have to, therefore, be read harmoniously in the light of the expression
“Central List” which occurs in Article 342A(2). This would be in keeping
with the debates and assurances held out in the Select Committee report
that States’ power would continue to remain unaffected. It was submitted
that such construction would result in a harmonious interpretation of all
B
provisions of the Constitution.
84. The learned Attorney General, appearing on account of notice
issued by this Court, urged that the 102nd Amendment did not bring about
a radical change in the power of identification of backward classes, in
relation to states, and that this power continues to remain with states.
C He submitted that the comparison by the appellants, with the powers
conferred by Article 338 and the Presidential power under Article 341
and Article 342, is inapt, because those were original provisions of the
Constitution, having a historical background. It was submitted that the
states’ responsibilities to uplift the lot of weaker sections, apparent from
D the directive principle under Article 46, is through affirmative policies
under Articles 15(4) and 16(4). To alter this balance, which had existed
from the beginning of the coming into force of the Constitution, is too
drastic, and nothing in the debates leading to the 102nd Amendment, or in
any material, such as the Select Committee Report, suggests that end.
E 85. The learned Attorney General also submitted that the object
of the 102 nd amendment was to ensure that a commission with
constitutional status would periodically examine the needs of socially
and educationally backward classes (“SEBC” hereafter), and suggest
inclusion or exclusion of such classes, in a list for the purposes of Central
Government, or central public sector corporation employment, and
F extension of other benefits under union educational and other institutions,
under Articles 15 (4) and 16 (4). In case such a list is drawn and published
under Article 342A (1), it is only Parliament that has the power to modify
it. This does not, in any manner disturb or take away the states’ power
to identify or include communities as backward classes of citizens for
G the purposes of benefits that they wish to extend to them, through state
policies and legislation, or for reservation in state employment under
Article 16 (4). He highlighted that the term “Unless the context
otherwise requires” is the controlling phrase, which precedes the
definition of various terms under Article 366 of the Constitution. Therefore,
if the context is different- as is evident from Article 342A (2), by the use
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 991
& ANR. [S. RAVINDRA BHAT, J.]

of the term “Central List”, that should be given meaning, and the A
interpretation based on that meaning should prevail in the construction
of the entire provision (i.e. Article 342A).
86. The learned Attorney General further argued that this court
had specifically recognized the states’ power to identify, make special
provisions, and reservations, in Indra Sawhney. He urged that the 102nd B
Amendment was not meant to limit this constitutional obligation of the
states, but rather to streamline the method of identification of socially
and educationally backward class of citizens, for the purpose of central
employment, and centrally funded and sponsored schemes, institutions
and facilities. It was urged that this is apparent from the use of the
expression “Central List” in Article 342A (2), which has to guide the C
interpretation of the list referred to in Article 342A (1).
III. Provisions relating to Scheduled Castes and Scheduled
Tribes, in the Constitution of India
87. Before proceeding with the interpretation of the provisions of D
the 102nd Amendment, it would be useful to briefly recapitulate the
provisions that existed for the identification of SCs and STs. Before the
Constitution was framed, the Government of India Act, by Section 26
defined SCs86. One Dr. J.H. Hutton, a Census Commissioner of India,
framed a list of the depressed classes systematically, and that list was
made the basis of an order promulgated by the British Government in E
India called the Government of India (Scheduled Castes) Order, 1936.
This court, in one of its decisions noticed that such list became the basis
for the Constitution (Scheduled Castes) Order, 1950.87 Article 338 as
originally enacted, provided for appointment of a special officer for the
SCs and STs to investigate all matters relating to the safeguards provided F
for the SCs and STs under the Constitution and to report to the President
on their working. In 1990, this position changed, and the Constitution
(Sixty Fifth) Amendment Act was enacted to create a five-member
commission under Article 338. The statement of objects88 envisioned
that such a commission would be
G
86
“the scheduled castes” means such castes, races or tribes or parts of or groups
within castes, races or tribes, being castes, races, tribes, parts or groups, which appear
to His Majesty in Council to correspond to the classes of persons formerly known as
“ the depressed classes”, as His Majesty in Council may specify”
87
Soosai Etc vs Union of India 1985 Supp (3) SCR 242.
88
Statement of Objects and Reasons, Constitution Sixty fifth Amendment Act, 1990 H
992 SUPREME COURT REPORTS [2021] 15 S.C.R.

A “a more effective arrangement in respect of the constitutional
safeguards for Scheduled Castes and Scheduled Tribes than
a single Special Officer as at present. It is also felt that it is
necessary to elaborate the functions of the said Commission
so as to cover measures that should be taken by the Union or
any State for the effective implementation of those safeguards
B
and other measures for the protection, welfare and socio-
economic development of the Scheduled Castes and Scheduled
Tribes.”
88. The composite Commission for SCs and STs was bifurcated
by another amendment- the Constitution (Eighty Ninth Amendment) Act,
C 2003, which inserted Article 338A, enabling the creation of a commission
exclusively to consider measures and make recommendations for
amelioration of STs. Article 338B has now been introduced through the
102nd amendment, which is in issue.
89. The relevant provisions relating to SCs and STs under the
D Constitution are extracted below:
“Article 366
366. Definitions.-In this Constitution, unless the context
otherwise requires, the following expressions have the
meanings hereby respectively assigned to them, that is to say-
E (1) xxxxxx xxxxxx xxxxxx
(24) “Scheduled Castes” means such castes, races or tribes
or parts of or groups within such castes, races or tribes as
are deemed under Article 341 to be Scheduled Castes for the
purposes of this Constitution;”
F (25) “Scheduled Tribes” means such tribes or tribal
communities or parts of or groups within such tribes or tribal
communities as are deemed under article 342 to be Scheduled
Tribes for the purposes of this Constitution;”
Article 338
G 338. [National Commission for Scheduled Castes] (1) There
shall be a Commission for the Scheduled Castes to be known
as the National Commission for the Scheduled Castes.
(2) Subject to the provisions of any law made in this behalf
by Parliament, the Commission shall consist of a Chairperson,
Vice-Chairperson and three other Members and the conditions
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 993
& ANR. [S. RAVINDRA BHAT, J.]

of service and tenure of office of the Chairperson, Vice- A
Chairperson and other Members so appointed shall be such
as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members
of the Commission shall be appointed by the President by
warrant under his hand and seal. B
(4) The Commission shall have the power to regulate its own
procedure.
(5) It shall be the duty of the Commission —
(a) to investigate and monitor all matters relating to the C
safeguards provided for the Scheduled Castes under this
Constitution or under any other law for the time being in
force or under any order of the Government and to evaluate
the working of such safeguards;
(b) to inquire into specific complaints with respect to the
D
deprivation of rights and safeguards of the Scheduled Castes;
(c) to participate and advise on the planning process of socio-
economic development of the Scheduled Castes and to
evaluate the progress of their development under the Union
and any State;
E
(d) to present to the President, annually and at such other
times as the Commission may deem fit, reports upon the
working of those safeguards;
(e) to make in such reports recommendations as to the
measures that should be taken by the Union or any State for F
the effective implementation of those safeguards and other
measures for the protection, welfare and socio-economic
development of the Scheduled Castes; and
(f) to discharge such other functions in relation to the
protection, welfare and development and advancement of the G
Scheduled Castes as the President may, subject to the
provisions of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before
each House of Parliament along with a memorandum
explaining the action taken or proposed to be taken on the
H
994 SUPREME COURT REPORTS [2021] 15 S.C.R.

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

D (a) summoning and enforcing the attendance of any person
from any part of India and examining him on oath;
(b) requiring the discovery and production of any documents;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any
E
court or office;
(e) issuing commissions for the examination of witnesses and
documents;
(f) any other matter which the President may, by rule,
F determine.
(9) The Union and every State Government shall consult the
Commission on all major policy matters affecting Scheduled
Castes.”
Before the 102nd Amendment Act, the following sub-Article formed
G part of Article 338:
“(10) In this article, references to the Scheduled Castes and
to such other backward classes as the President may, on
receipt of the report of a Commission appointed under clause
(1) of article 340, by order specify and also shall be construed
H as including references to the Anglo-Indian community.”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 995
& ANR. [S. RAVINDRA BHAT, J.]

By the 102nd Amendment Act, the words “and to such other A
backward classes as the President may, on receipt of the report of a
Commission appointed under clause (1) of article 340, by order
specify” were deleted89. The other provisions relating to SCs and STs
are as follows:
“338A. National Commission for Scheduled Tribes.— B
(1) There shall be a Commission for the Scheduled Tribes to
be known as the National Commission for the Scheduled
Tribes.
(2) Subject to the provisions of any law made in this behalf
by Parliament, the Commission shall consist of a Chairperson, C
Vice-Chairperson and three other Members and the conditions
of service and tenure of office of the Chairperson, Vice-
Chairperson and other Members so appointed shall be such
as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members D
of the Commission shall be appointed by the President by
warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own
procedure.
E
(5) It shall be the duty of the Commission— (a) to investigate
and monitor all matters relating to the safeguards provided
for the Scheduled Tribes under this Constitution or under
any other law for the time being in force or under any order
of the Government and to evaluate the working of such
safeguards; F
(b) to inquire into specific complaints with respect to the
deprivation of rights and safeguards of the Scheduled Tribes;
(c) to participate and advise on the planning process of socio-
economic development of the Scheduled Tribes and to evaluate
the progress of their development under the Union and any G
State;
89
By Section 2 which is as follows:“2. In article 338 of the Constitution, in clause (10),
the words, brackets and figures “to such other backward classes as the President may,
on receipt of the report of a Commission appointed under clause (1) of article 340, by
order specify and also” shall be omitted”. H
996 SUPREME COURT REPORTS [2021] 15 S.C.R.

A (d) to present to the President, annually and at such other
times as the Commission may deem fit, reports upon the
working of those safeguards;
(e) to make in such reports recommendation as to the measures
that should be taken by the Union or any State for the effective
B implementation of those safeguards and other measures for
the protection, welfare and socio-economic development of
the Scheduled Tribes; and
(f) to discharge such other functions in relation to the
protection, welfare and development and advancement of the
C Scheduled Tribes as the President may, subject to the provisions
of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before
each House of Parliament along with a memorandum
explaining the action taken or proposed to be taken on the
recommendations relating to the Union and the reasons for
D
the non-acceptance, if any, of any such recommendations.
(7) Where any such report, or any part thereof, relates to any
matter with which any State Government is concerned, a copy
of such report shall be forwarded to the Governor of the State
who shall cause it to be laid before the Legislature of the
E State along with a memorandum explaining the action taken
or proposed to be taken on the recommendations relating to
the State and the reasons for the non-acceptance, if any, of
any of such recommendations.
(8) The Commission shall, while investigating any matter
F referred to in sub-clause (a) or inquiring into any complaint
referred to in sub-clause (b) of clause (5), have all the powers
of a civil court trying a suit and in particular in respect of the
following matters, namely:—
(a) summoning and enforcing the attendance of any person
G from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any
court or office;
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 997
& ANR. [S. RAVINDRA BHAT, J.]

(e) issuing commissions for the examination of witnesses and A
documents;
(f) any other matter which the President may, by rule,
determine.
(9) The Union and every State Government shall consult the
Commission on all major policy matters affecting Scheduled B
Tribes.]
Article 341
341. Scheduled Castes-(1) The President may with respect to
any State or Union territory, and where it is a State after
consultation with the Governor thereof, by public notification, C
specify the castes, races or tribes or parts of or groups within
castes, races or tribes which shall for the purposes of this
Constitution be deemed to be Scheduled Castes in relation to
that State or Union territory, as the case may be
(2) Parliament may by law include in or exclude from the list
of Scheduled Castes specified in a notification issued under D
clause ( 1 ) any caste, race or tribe or part of or group within
any caste, race or tribe, but save as aforesaid a notification
issued under the said clause shall not be varied by any
subsequent notification
Article 342 E
342. Scheduled Tribes -(1) The President may with respect to
any State or Union territory, and where it is a State, after
consultation with the Governor thereof, by public notification,
specify the tribes or tribal communities or parts of or groups
within tribes or tribal communities which shall for the purposes
F
of this Constitution be deemed to be Scheduled Tribes in
relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list
of Scheduled Tribes specified in a notification issued under
clause ( 1 ) any tribe or tribal community or part of or group
within any tribe or tribal community, but save as aforesaid a G
notification issued under the said clause shall not be varied
by any subsequent notification.”
IV. Previous commissions set up to identify SEBCs
90. It would be useful at this stage to recollect that before Indra
Sawhney, two commissions were set up at the national level, to examine H
998 SUPREME COURT REPORTS [2021] 15 S.C.R.

A and make suitable recommendations in respect of identification of other
backward classes. These were the Kaka Kalelkar Commission90 and
the B.P. Mandal Commission91. The Kalelkar Commission, after an
exhaustive survey and study, through its report, identified 2399 backward
groups and recommended several measures for their advancement, as
steps that could be taken by the Union and the states. The Mandal
B
Commission report identified individuals belonging to 3,743 different castes
and communities, as “backward”.
V. Interpretation of provisions similar to Article 342A- i.e.
Articles 341 and 342 of the Constitution of India
91. The consistent view while interpreting Articles 341 and 342
C has been that the power which the Constitution conferred is initially
upon the President, who, after the introduction of the 65th and 89th
Amendments and the insertion of Articles 338 and 338A, is aided in the
task of identification of the SCs and STs, by two separate Commissions,
to include or exclude members claiming to be SCs or STs. The view of
D this Court has been that once a determination has been done, no court
can, by interpretive process, or even the executive through its policies,
include members of other communities as falling within a particular class
or described community or even in any manner extend the terms of the
determination under Articles 341 or 342. The power to further include,
or modify contents of the existing list (of SC/STs) is with Parliament
E only [by reason of Article341 (2) and Article 342 (2)] This position has
been consistently followed in a series of decisions. Likewise, in the
interpretation as to which communities are categorized as SCs or STs,
this Court has been definite, i.e. that only such classes or communities
who specifically fall within one or the other lists, that constitute SCs or
F such STs for the purpose of this Constitution under Article 366(24) and
Article 366 (25). This has been established in the decision of this Court
in Bhaiya Lal v. Harikishan Singh 92 ; Basavalingappa
v Munichinnappa93 and Kishori Lal Hans v. Raja Ram Singh94 The
recent Constitution Bench decision in Bir Singh v. Delhi Jal Board95,
reiterated this position clearly:
G
90
Set up by the Central Government, in January 1953.
91
Set up by the Central Government on 1 January, 1979.
92
1965 (2) SCR 877.
93
1965 (1) SCR 316.
94
1972 (3) SCC 1.
95
(2018) 10 SCC 312.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 999
& ANR. [S. RAVINDRA BHAT, J.]

“36. The upshot of the aforesaid discussion would lead us to A
the conclusion that the Presidential Orders issued under Article
341 in regard to Scheduled Castes and under Article 342 in
regard to Scheduled Tribes cannot be varied or altered by
any authority including the Court. It is Parliament alone which
has been vested with the power to so act, that too, by laws
B
made. Scheduled Castes and Scheduled Tribes thus specified
in relation to a State or a Union Territory does not carry the
same status in another State or Union Territory. Any
expansion/deletion of the list of Scheduled Castes/Scheduled
Tribes by any authority except Parliament would be against
the constitutional mandate under Articles 341 and 342 of the C
Constitution of India.
******** ********
38. It is an unquestionable principle of interpretation that
interrelated statutory as well as constitutional provisions have
to be harmoniously construed and understood so as to avoid D
making any provision nugatory and redundant. If the list of
Scheduled Castes/Scheduled Tribes in the Presidential Orders
under Articles 341/342 is subject to alteration only by laws
made by Parliament, operation of the lists of Scheduled Castes
and Scheduled Tribes beyond the classes or categories E
enumerated under the Presidential Order for a particular State/
Union Territory by exercise of the enabling power vested by
Article 16(4)would have the obvious effect of circumventing
the specific constitutional provisions in Articles 341/342. In
this regard, it must also be noted that the power under Article
16(4) is not only capable of being exercised by a legislative F
provision/enactment but also by an Executive Order issued
under Article 166 of the Constitution. It will, therefore, be in
consonance with the constitutional scheme to understand the
enabling provision under Article 16(4) to be available to
provide reservation only to the classes or categories of G
Scheduled Castes/Scheduled Tribes enumerated in the
Presidential Orders for a particular State/Union Territory
within the geographical area of that State and not beyond. If
in the opinion of a State it is necessary to extend the benefit
of reservation to a class/category of Scheduled Castes/
H
1000 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Scheduled Tribes beyond those specified in the Lists for that
particular State, constitutional discipline would require the
State to make its views in the matter prevail with the central
authority so as to enable an appropriate parliamentary
exercise to be made by an amendment of the Lists of Scheduled
Castes/Scheduled Tribes for that particular State. Unilateral
B
action by States on the touchstone of Article 16(4) of the
Constitution could be a possible trigger point of constitutional
anarchy and therefore must be held to be impermissible under
the Constitution.”
VI. Pre-102 nd Amendment position in the Constitution in
C relation to SEBCs
92. The original Constitution did not contain any special provision
of like manner as Articles 341 and 342. It did not define SEBCs. The
only reference to SEBCs was in Article 340, which enabled the Central
Government to setup a Commission for recommending measures for
D the progress and upliftment of backward classes of citizens. That
provision is as follows:
“340. Appointment of a Commission to investigate the
conditions of backward classes
(1) The President may by order appoint a Commission
E consisting of such persons as he thinks fit to investigate the
conditions of socially and educationally backward classes
within the territory of India and the difficulties under which
they labour and to make recommendations as to the steps that
should be taken by the Union or any State to remove such
difficulties and to improve their condition and as to the grants
F that should be made for the purpose by the Union or any
State the conditions subject to which such grants should be
made, and the order appointing such Commission shall define
the procedure to be followed by the Commission
(2) A Commission so appointed shall investigate the matters
G referred to them and present to the President a report setting
out the facts as found by them and making such
recommendations as they think proper
(3) The President shall cause a copy of the report so presented
together with a memorandum explaining the action taken
H thereon to be laid before each House of Parliament”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1001
& ANR. [S. RAVINDRA BHAT, J.]

93. After the decision of this Court in Champakam Dorairajan A
v. State of Madras96, Article 15 was amended and Article 15 (4) was
introduced. The term “socially and educationally backward class of
citizens” was inserted, conferring power upon the State to make special
provisions for their advancement. This term “socially and educationally
backward” has been held to also provide colour the term “backward
B
class” in the decision in Indra Sawhney – as indeed in the earlier decision
in NM Thomas (supra). This court noticed that ‘backward class’ of
citizens, though wider in context, has to take colour from social
backwardness, which also results in educational backwardness.
94. Indra Sawhney in para 859 (13)97, had issued directions with
regard to the desirability of setting up Commissions by the Central and C
State Governments, to ascertain the position and identification of backward
class of citizens, evaluation of rational criteria and periodic review of
such lists. Pursuant to this direction, Parliament introduced the NCBC
Act, 1993. This Act defined ‘Central List’ under Section 2(c). The terms
of this enactment make it clear that the lists of backward class of citizens D
prepared by the Commission and recommended to the Central
Government were to be for the purposes of providing reservations in
employment under Article 16(4), and for reservations and other ameliorate
measures that the Central Government can initiate and introduce under
Article 15(4). Acting on the recommendations of this court, post Indra
Sawhney, several State Governments appeared to have enacted other E
laws for setting up commissions for backward class and backward caste
groups98. In four States – Tamil Nadu, Gujarat, Punjab and Haryana, the
Commissions were set up by executive action.
95. This Court had at the earlier part of this section, set out the
provisions of Article 366(26C), Article 338B and Article 342A. The F
96
AIR 1951 SC 226.
97
SCC report.
98
The Maharashtra SCBC Act, 2006 is one such institution. The others are Karnataka
State Commission for Backward Classes, 1995; A.P. Commission for Backward Classes
Act, 1995; U.P. State Commission for Backward Classes Act, 1996; Kerala State
Commission for Backward Classes Act, 1993; Madhya Pradesh Rajya
G
PichdaVargAdhiniyam, 1995; Bihar State Commission for Backward Classes Act, 1993;
Assam Backward Classes Commission Act, 1993; Orissa State Commission for
Backward Classes Act, 1993; West Bengal Commission for Backward Classes Act,
1993; J&K State Commission for Backward Classes Act, 1997; Chhatisgarth Rajya
Pichhda Varga Adhiniyam, 1993 & Telangana Commission for Backward Classes Act,
1993. H
1002 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Statement of Objects and Reasons for the introduction of these provisions
– referred to compendiously as the 102nd Amendment – do not indicate
any concrete purpose for the insertion of those provisions, except the
general comment that Parliament wished to confer constitutional status
on the Commission for determination of SEBCs.
B VII. The Constitution 123 rd Amendment Bill, the 102 nd
Amendment Act and report of the Parliamentary Standing
Committee
96. Learned counsel for the respondents as indeed the appellants
referred extensively to the deliberations recorded in and assurances given,
C and reflected in the Report of the Select Committee of the Rajya Sabha,
submitted to the Parliament at the time when the 123rd amendment bill
was introduced. A brief reference of this can now be made. The
introduction (to the Report dated (July 2017) disclosed that in all, seven
meetings were held by the Select Committee. The committee comprised
25 members, with a Secretariat of 7 officials. It took note of statements
D made by three representatives of the Ministry of Social Justice, two
from the Department of Legal Affairs and three from the Legislative
Department.
97. The Report noted the background of introduction of the 123rd
Amendment Bill including the amendments to Article 338 and the
E introduction of Article 338B. It traces the history of the Backward Class
Commissions set up under Article 340, the office memoranda which led
to the Judgment in Indra Sahwney, as well as the direction by this
Court in that Judgment regarding setting up of commissions. It further
noted the existing legal regime i.e., the NCBC Act, and noted that several
F experts felt that there was no change or amendment needed to alter the
existing regime for identification of backward classes. In Para 20 of the
Report, it was noted that in the Fifth Consultation Meeting, the members
had raised the concern as to whether Article 342A(1) would exclude
state consultation. The relevant para reads as follows:

G “18. It was also submitted that the powers and functions of
the State Government and the State Backward Classes
Commissions with regard to identification, exclusion and
inclusion of classes in the State List should be clarified.
Further, the process of consultation with the Governor should
also be clarified in the Bill.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1003
& ANR. [S. RAVINDRA BHAT, J.]

19. In response to the above issues raised, the Ministry A
clarified that sub-clause (9) of article 338B does not in any
way interfere with the powers of the State Governments to
prepare their own list. The Committee was further informed
that classes so included in the State Backward Classes List
do not automatically come in the Central List of OBCs.
B
20. In its fifth meeting representatives/Members raised a
concern about clause (1) of Article 342A, whether the list
would be issued by the President after consultation with the
State Government or consultation with only Governor of the
State. It was clarified by the Ministry that clause (1) of Article
154 and Article 163 of the Constitution clearly state that the C
Governor shall act on the advice of the Council of Ministers.
It is also clarified that under the above Constitutional
provisions, the Governor shall exercise his authority either
directly or indirectly through officers of respective State
Government. Article 341 of Constitution provides for D
consultation with Governor of State with respect to Scheduled
Castes and Article 342 of the Constitution provides
consultation of President with Governor of State in respect of
Scheduled Tribes. As is the practice, at not time has the State
Government been excluded in the consultation process. It is
always invariably the State Government which recommends E
to the President the category of inclusion/exclusion in
Scheduled Castes and Scheduled Tribes. Similar provision is
provided for in the case of conferring of constitutional status
for backward classes for inclusion in Central list of socially
and educationally backward classes. Consultation with F
Governor thereby implies consultation with the State
Government.”
98. In its clause-by-clause consideration of the Bill, the Committee
noted the apprehension with respect to setting up of a new Commission
in Article 342B instead of creating it under Article 340. In this context, a G
clarification was issued that Article 340 enabled setting up of adhoc
bodies like the Kaka Kalelkar Commission and Mandal Commission,
whereas Article 338B sought to confer Constitutional status on a multi-
member permanent body. Paras 31-34 of the Report discussed the
membership of the composition of the Commission under Article 338B
H
1004 SUPREME COURT REPORTS [2021] 15 S.C.R.

A and also whether the NCBC Act would be repealed. Interestingly, Para
47 reflects the discussion regarding an amendment by which new Sub-
Article 10 was proposed to Article 338B. It read as follows:
“47. The Committee discussed the amendment wherein in
article 338B a new sub-clause (10) was proposed to be
B inserted. This sub-clause (10) would read as follows:
‘Notwithstanding anything provided in clause 9, the State
Government shall continue to have powers to identify Socially
and Educationally Backward Classes’.
99. The Committee was satisfied, in the Report with the
C clarification issued by the concerned Ministry in the following terms:
“48. It was clarified by the Ministry of Social Justice and
Empowerment to the Committee that the proposed amendment
does not interfere with the powers of the State Governments
to identify the Socially and Educationally Backward Classes.
D The existing powers of the State Backward Classes
Commission would continue to be there even after the passage
of the Constitution (One Hundred and Twenty-third
Amendment) Bill, 2017.”
100. Para 50-53 (of the Report) set out proposals to amend Article
E 342A which limited it to making provisions for reservations in
appointments or posts under the Government of India or under the
authority of the Government of India and also consequential amendment
to Article 342A (2). Further, a proposed Article 342A(3) sought to
empower the State Government - i.e. the Governor which could by public
F notification, specify SEBCs for the purposes of reservation of posts under
the State or under any authority of the State. A like amendment was
proposed, i.e., Article 342A (4) that:
“the Governor may on the advice of the State Commission of
Backward Classes include or exclude from the State list of
socially and educationally backward classes specified in a
G
notification issued under Clause (3)”.
101. The other set of amendments discussed were firstly, to Article
342A(1) that with respect to a State or Union Territory, the President
could make inclusions “with prior recommendation of the State
Government, given due regard to such recommendations”, and
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1005
& ANR. [S. RAVINDRA BHAT, J.]

secondly, for the introduction of Article 342A(3) and (4) enabling the A
State to issue public notifications - like in the case of Article 342A(1)
and the consequential amendment thereof through legislation alone, via
proposed Article 342A (4).
102. Other amendments with respect to placing the report of the
Commission under Article 338B before both Houses of Parliament, B
consultation with the governor to be based upon advice given to the
governor by the state commission for backward classes, and amendment
of the list under Article 342A (1) being only through a law based upon
recommendations of the Commission under Article 338A and 338B and
also obliging and revision of the list in ten year periods, were suggested.
C
103. All these were duly considered in the Committee’s Report
and not accepted, stating as follows:
“54. The Ministry, on the amendments moved, clarified that
time bound decadal revision of lists by the proposed
Commission, is a continuous process. The Commission D
however, is empowered to enquire into specific complaints
with respect to the deprivation of right and safeguards of the
socially and educationally backward classes.
55. The Ministry clarified that the aspect of reservation of
posts under that State or under any other authority of the E
State or under the control of the State, or seats in the
educational institutions within that State was beyond the
purview of the instant Bill and hence the amendments
proposed are not allowed.
56. It was clarified by the Ministry that clause (1) of article F
154 and article 163 of the Constitution clearly state that
Governor shall act on the advice of the Council of Ministers.
It was informed that under the above Constitutional provisions
the Governor shall exercise his authority either directly or
indirectly through officers of respective State Government.
Article 341 of Constitution provides for consultation by the G
President with Governor of State with respect to Scheduled
Castes and article 342 of the Constitution provides
consultation by the President with Governor of State in respect
of Scheduled Tribes. As is the practice at no time has the
State Government been excluded in the consultation process.
H
1006 SUPREME COURT REPORTS [2021] 15 S.C.R.

A It is always invariably the State Government which
recommends to the President the category of inclusion /
exclusion in Scheduled Castes and Scheduled Tribes. Similar
provision is provided for in the case of conferring of
constitutional status for backward classes for inclusion in
Central list of SEBC. Consultation with Governor thereby
B
implies consultation with the State Government.
57. The Ministry also clarified to the Committee that the phrase
“for the purpose of this Constitution” as provided under clause
(1) of article 342A is on lines similar to articles 341 and 342
of the Constitution. The setting up of the proposed Commission
C will not be retrograde to the interest of the socially and
educationally backward classes. The article 342A will provide
for a comprehensive examination of each case of inclusion/
exclusion from the Central List. The ultimate power for such
inclusion/exclusion would stand vested with the Parliament.
D 58. The Committee held discussion on the proposed
amendments and in view of the detailed explanations
furnished by the Ministry, the Committee adopted the Clause
4 of the Bill without any amendments.
***
E
104. The section dealing with the amendment to Article 366 reads
as follows:
“Clause 5:Provides for amendment of article 366
59. This Clause proposes to insert a new clause (26C) in article
F 366 which reads as under:-
“(26C) socially and educationally backward classes” means
such backward classes as are so deemed under article 342A
for the purposes of this Constitution;”
***
G
105. The Report of the Select Committee, made certain concluding
general observations, a part of which stated that:
“66. The Committee feels that the Constitutional Amendments
proposed in this Bill would further strengthen affirmative
H action in favour of socially and educationally backward
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1007
& ANR. [S. RAVINDRA BHAT, J.]

classes as well as further boost concept of cooperative A
federalism between the Centre and States.
67. The Committee observes that the amendments do not in
any way affect the independence and functioning of State
Backward Classes Commissions’ and they will continue to
exercise unhindered their powers of inclusion/exclusion of B
other backward classes with relation to State List.
68. The Committee also took note of the concerns raised by
some Members regarding the composition of the Commission
and would like to impress upon the Ministry that while
addressing the concerns of the Members the rules framed for C
the Chairperson and Members of the National Commission
for Scheduled Casts and National Commission for Scheduled
Tribes may be taken into consideration. The Committee is of
the view that while framing the rules for composition of the
proposed Commission and selection of its Chairperson it
should be ensured that the persons belonging to socially and D
educationally backward classes be given due representation
to inspire confidence amongst the socially and educationally
backward classes. It may further be ensured that at least one-
woman member is part of the Commission.
69. The Committee hopes that the Bill would bring a sea E
change by putting in place effective and efficient delivery
mechanism for the welfare of socially and educationally
backward classes.”
VIII Extrinsic aids to interpretation of statutes: the extent to
which they can be relied upon F
106. The parties presented rival submissions with respect to
interpretation of the words of the statute in the light of the reports of the
Select Committee report as well as the debates in Parliament at the time
of introduction of the amendment, or the law as enacted. The appellants
asserted that such debates are of limited assistance only as external aids G
in the case of an ambiguity and had relied upon a line of decisions starting
with State of Travancore-Cochin v. Bombay Trading Company
(supra) and culminating in P.V. Narasimha Rao (supra). On the other
hand, the respondent States alluded to the larger bench decision of this
Court in Kalpana Mehta (supra) which emphatically held that Standing
H
1008 SUPREME COURT REPORTS [2021] 15 S.C.R.

A Committee reports and statements made on the floor of House can be
limited extrinsic aids for considering and interpreting express terms of a
statute, or even the Constitution.
107. In the present case, the Statement of Objects and Reasons
do not throw much light on why the provisions of the 102nd Amendment
B Act were introduced. No doubt, there are certain passages in the Select
Committee Report suggestive of the fact that the power of identification
carved out through the newly inserted Articles 338B and 342A would
not in any manner disturb the powers of the State to carry on their work
in relation to special provisions or reservations for backward classes
(through appropriate measures, be it legislative or executive). A holistic
C reading of the report also suggests that the Select Committee reflected
both points of view and recorded the assurances given by the Ministry
that the State’s power would not be disturbed. At the same time, in
conclusion, it was emphatically stated that the States’ concerns would
be given due regard and that the exercise would be in line with the
D existing procedure under Articles 341 and 342.99 The report also contains
notes of dissent, which highlight that the amendments would deprive the
States of their existing power to identify, and provide reservations and
other special provisions for the benefit of SEBCs.
108. There cannot be a disagreement with the proposition that
where the provisions of the statute or its wordings are ambiguous, the
E first attempt should be to find meaning, through internal aids, in the statute
itself. Failing this, it is open to the court to find meaning, and resolve the
ambiguity, by turning to external aids, which include the statements of
objects and reasons, as well as Parliamentary reports, or debates in
Parliament. To this Court, it appears that the task of interpreting the
F provisions of 102nd Amendment does not begin by relying on external
aids such as Statement of Objects and Reasons (which throw practically
no light on the meaning of the provisions), or even the Select Committee
Report. The task of interpretation is first to consider the overall scheme
of the provisions, and secondly, after considering the provision, proceed
to resolve any perceived ambiguity, if found, by resorting to aids within
G 99
“57. The Ministry also clarified to the Committee that the phrase “for the purpose of
this Constitution” as provided under clause (1) of article 342A is on lines similar to
articles 341 and 342 of the Constitution. The setting up of the proposed Commission will
not be retrograde to the interest of the socially and educationally backward classes. The
article 342A will provide for a comprehensive examination of each case of inclusion/
exclusion from the Central List. The ultimate power for such inclusion/exclusion would
H stand vested with the Parliament.”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1009
& ANR. [S. RAVINDRA BHAT, J.]

the statute. It is at the third stage, when such resolution is impossible, A
that external aids are to be looked into. Thus, in a seven-judge bench
decision, this court, in State of Karnataka v. Union of India 100
administered the following caution, while outlining the court’s task of
interpreting the Constitution:
“The dynamic needs of the nation, which a Constitution must B
fulfil, leave no room for merely pedantic hair-splitting play
with words or semantic quibblings. This, however, does not
mean that the Courts, acting under the guise of a judicial
power, which certainly extends to even making the
Constitution, in the sense that they may supplement it in those
parts of it where the letter of the Constitution is silent or may C
leave room for its development by either ordinary legislation
or judicial interpretation, can actually nullify, defeat, or
distort the reasonably clear meaning of any part of the
Constitution in order to give expression to some theories of
their own about the broad or basic scheme of the Constitution.
The theory behind the Constitution which can be taken into D
account for purposes of interpretation, by going even so far
as to fill what have been called the “interstices” or spaces
left unfilled, due perhaps to some deliberate vagueness or
indefiniteness in the letter of the Constitution, must itself be
gathered from express provisions of the Constitution. The E
dubiousness of expressions used may be cured by Court by
making their meanings clear and definite if necessary in the
light of the broad and basic purposes set before themselves
by the Constitution makers. And, these meanings may, in
keeping with the objectives or ends which the Constitution of
every nation must serve, change with changing requirements F
of the times. The power of judicial interpretation, even if it
includes what may be termed as “interstitial” law making,
cannot extend to direct conflict with express provisions of the
Constitution or to ruling them out of existence.”
109. The primary duty of this court, while interpreting a G
constitutional provision(in the present case, an amendment to the
Constitution, no less) was underlined thus, in GVK Industries Ltd. v.
Income Tax Officer101
100
1978 (2) SCR 1.
101
(2011) 4 SCC 36. H
1010 SUPREME COURT REPORTS [2021] 15 S.C.R.

A “37. In interpreting any law, including the Constitution, the
text of the provision under consideration would be the primary
source for discerning the meanings that inhere in the
enactment. However, in light of the serious issues it would
always be prudent, as a matter of constitutional necessity, to
widen the search for the true meaning, purport and ambit of
B
the provision under consideration. No provision, and indeed
no word or expression, of the Constitution exists in isolation—
they are necessarily related to, transforming and in turn being
transformed by, other provisions, words and phrases in the
Constitution.
C 38. Our Constitution is both long and also an intricate matrix
of meanings, purposes and structures. It is only by locating a
particular constitutional provision under consideration within
that constitutional matrix could one hope to be able to discern
its true meaning, purport and ambit. As Prof. Laurence Tribe
D points out:
“[T]o understand the Constitution as a legal text, it is essential
to recognize the … sort of text it is: a constitutive text that
purports, in the name of the people…, to bring into being a
number of distinct but inter-related institutions and practices,
E at once legal and political, and to define the rules governing
those institutions and practices.” (See Reflections on Free-
Form Method in Constitutional Interpretation. [108 Harv L
Rev 1221, 1235 (1995)]).”
39. It has been repeatedly appreciated by this Court that our
F Constitution is one of the most carefully drafted ones, where
every situation conceivable, within the vast experience,
expertise and knowledge of our framers, was considered,
deliberated upon, and appropriate features and text chosen
to enable the organs of the State in discharging their roles.
While indeed dynamic interpretation is necessary, if the
G meaning necessary to fit the changed circumstances could be
found in the text itself, we would always be better served by
treading a path as close as possible to the text, by gathering
the plain ordinary meaning, and by sweeping our vision and
comprehension across the entire document to see whether that
H meaning is validated by the constitutional values and scheme.”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1011
& ANR. [S. RAVINDRA BHAT, J.]

In examining provisions of the Constitution, courts should adopt A
the primary rule, and give effect to the plain meaning of the expressions;
this rule can be departed, only when there are ambiguities. In Kuldip
Nayar v. Union of India 102 after quoting from
G. Narayanaswami v. G. Panneerselvam103 this court held that
“201. … We endorse and reiterate the view taken in the above B
quoted paragraph of the judgment. It may be desirable to
give a broad and generous construction to the constitutional
provisions, but while doing so the rule of “plain meaning” or
“literal” interpretation, which remains “the primary rule”,
has also to be kept in mind. In fact the rule of “literal
construction” is the safe rule unless the language used is C
contradictory, ambiguous, or leads really to absurd results.”
110. Whilst dealing the task of the court, and the permissible extent
to which it can resort to internal and extrinsic aids to construction of a
statute, this court remarked, in Pushpa Devi v. Milkhi Ram104 that:
D
“18. It is true when a word has been defined in the
interpretation clause, prima facie that definition governs
wherever that word is used in the body of the statute unless
the context requires otherwise. “The context” as pointed out
in the book Cross-Statutory Interpretation (2nd edn. p. 48)
“is both internal and external”. The internal context requires E
the interpreter to situate the disputed words within the section
of which they are part and in relation to the rest of the Act.
The external context involves determining the meaning from
ordinary linguistic usage (including any special technical
meanings), from the purpose for which the provision was F
passed, and from the place of the provisions within the general
scheme of statutory and common law rules and principles.
19. The opening sentence in the definition of the section states
“unless there is anything repugnant in the subject or context”.
In view of this qualification, the court has not only to look at G
the words but also to examine the context and collocation in
the light of the object of the Act and the purpose for which a
particular provision was made by the legislature.”
102
(2006) 7 SCC 1.
103
(1972) 3 SCC 717.
104
(1990) 2 SCC 134. H
1012 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 111. Again, in Karnataka State Financial Corporation. v. N.
Narasimahaiah105 it was observed that:
“42. Interpretation of a statute would not depend upon a
contingency. It has to be interpreted on its own. It is a trite
law that the court would ordinarily take recourse to the golden
B rule of literal interpretation. It is not a case where we are
dealing with a defect in the legislative drafting. We cannot
presume any. In a case where a court has to weigh between a
right of recovery and protection of a right, it would also lean
in favour of the person who is going to be deprived therefrom.
It would not be the other way round. Only because a speedy
C remedy is provided for that would itself (sic not) lead to the
conclusion that the provisions of the Act have to be extended
although the statute does not say so. The object of the Act
would be a relevant factor for interpretation only when the
language is not clear and when two meanings are possible
D and not in a case where the plain language leads to only one
conclusion.”
112. In another recent decision, Laurel Energetics (P) Ltd. v.
Securities Exchange Board of India106 this court observed that:
“24. In Utkal Contractors and Joinery (P) Ltd. v. State of
E Orissa [Utkal Contractors and Joinery (P) Ltd. v. State of
Orissa, 1987 Supp SCC 751] , a similar argument was turned
down in the following terms: (SCC pp. 757-58, paras 11-12)
‘11. Secondly, the validity of the statutory notification cannot
be judged merely on the basis of Statement of Objects and
Reasons accompanying the Bill. Nor it could be tested by the
F government policy taken from time to time. The executive policy
of the Government, or the Statement of Objects and Reasons
of the Act or Ordinance cannot control the actual words used
in the legislation. In Central Bank of India v. Workmen [Central
Bank of India v. Workmen, AIR 1960 SC 12] S.K. Das, J. said:
G (AIR p. 21, para 12)
‘12. … The Statement of Objects and Reasons is not admissible,
however, for construing the section; far less can it control
the actual words used.’
105
(2008) 5 SCC 176.
106
(2017) 8 SCC 541
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1013
& ANR. [S. RAVINDRA BHAT, J.]

12. In State of W.B. v. Union of India [State of W.B. v. Union A
of India, AIR 1963 SC 1241] , Sinha, C.J. observed: (AIR p.
1247, para 13)
‘13. … It is however, well settled that the Statement of Objects
and Reasons accompanying a Bill, when introduced in
Parliament, cannot be used to determine the true meaning B
and effect of substantive provisions of the statute. They cannot
be used except for the limited purpose of understanding the
background and the antecedent state of affairs leading up to
the legislation. But we cannot use this statement as an aid to
the construction of the enactment or to show that the legislature
did not intend to acquire the proprietary right vested in the C
State or in any way to affect the State Governments’ rights as
owner of minerals. A statute, as passed by Parliament, is the
expression of the collective intention of the legislature as a
whole, and any statement made by an individual, albeit a
Minister, of the intention and objects of the Act cannot be D
used to cut down the generality of the words used in the
statute.”
***
25. In the factual scenario before us, having regard to the
aforesaid judgment, it is not possible to construe the E
Regulation in the light of its object, when the words used are
clear. This statement of the law is of course with the well-
known caveat that the object of a provision can certainly be
used as an extrinsic aid to the interpretation of statutes and
subordinate legislation where there is ambiguity in the words F
used.”
113. The position in UK is that that the report of a Select Committee
may be considered as background to the construction of an Act; however,
such reports could not be invested with any kind of interpretive
authority. 107 In R. (Baiai) v. Home Secretary, 108 a report of the G
Parliamentary Joint Committee on Human Rights was considered. The
committee’s opinions on compatibility and other matters of law were

107
See Ryanair Ltd. v. HM Revenue and Customs [2014] EWCA Civ. 410.
108
[2006] EWHC 823 (Admin).
H
1014 SUPREME COURT REPORTS [2021] 15 S.C.R.

A held to have persuasive value, however, they could have no greater weight
than, for example, the views of distinguished academic writers. 109
IX Interpretation of the Constitution, the definition clause
under Article 366 and Amendments to the Constitution
114. The Court has to interpret provisions of the Constitution, in
B this case, introduced through an amendment. The proper method of
interpreting such an amendment was indicated by a five-judge bench in
Kihoto Hollohan v. Zachillhu110, where it was held that:
“26. In expounding the processes of the fundamental law, the
Constitution must be treated as a logical whole. Westel
C Woodbury Willoughby in The Constitutional Law of the United
States (2nd edn., Vol. 1, p. 65) states:
“The Constitution is a logical whole, each provision of which
is an integral part thereof, and it is, therefore, logically proper,
and indeed imperative, to construe one part in the light of the
D provisions of the other parts.”
***
“28. In considering the validity of a constitutional amendment
the changing and the changed circumstances that compelled
the amendment are important criteria. The observations of
E
the U.S. Supreme Court in Maxwell v. Dow [176 US 581 : 44
L Ed 597, 605 (1899)] are worthy of note: (L Ed p. 605)
“… to read its language in connection with the known
condition of affairs out of which the occasion for its adoption
may have arisen, and then to construe it, if there be therein
F
any doubtful expressions, in a way so far as is reasonably
possible, to forward the known purpose or object for which
the amendment was adopted ….”
115. Recollecting these principles, this court is mindful of the first
circumstance that the 102ndAmendment brought in an entirely new
G dimension - an attempt to identify backward classes, firstly by inserting
Sub-Article (26C) into the definition clause under Article 366. This
insertion, in the opinion of the court, accords with the statutory scheme
109
Also see Craies on Statutory Interpretation, Eleventh Edition(Sweet & Maxwell)
2017 Chap. 27 @ para 27.1.13.1, page 952
110
H 1992 Supp (2) SCC 651
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1015
& ANR. [S. RAVINDRA BHAT, J.]

of defining terms for the purposes of the Constitution. This term “for A
the purposes of this Constitution” occurs twelve times111 in the
Constitution.
116. The interpretation of the definition in relation to the Constitution,
is truly indicative that for the purpose of the entire constitution, the
meaning ascribed in the definition clause – in this case, by Article 366 B
(26C), has to prevail. While interpreting whether members of SCs/ STs
who communities find mention in the Presidential notification in two states,
could claim reservation benefits in both states, this court had occasion to
consider a parimateria provision, i.e. Articles 366 (24) and (25) which
defined SCs “for the purposes of this constitution”. In Marri Chandra
Shekhar Rao v. Dean, Seth G.S. Medical College112, a Constitution C
Bench of this Court held as follows:
“12. It is, however, necessary to give proper meaning to the
expressions ‘for the purposes of this Constitution’ and ‘in
relation to that State’ appearing in Articles 341 and 342 of
the Constitution.” D

This court then noticed the divergent views of the High Courts
and then observed:
“13. It is trite knowledge that the statutory and constitutional
provisions should be interpreted broadly and harmoniously. E
It is trite saying that where there is conflict between two
provisions, these should be so interpreted as to give effect to
both. Nothing is surplus in a Constitution and no part should
be made nugatory. This is well settled. See the observations
of this Court in Venkataramana Devaru v. State of
Mysore [1958 SCR 895, 918 : AIR 1958 SC 255] , where F
Venkatarama Aiyer, J. reiterated that the rule of construction
is well settled and where there are in an enactment two
provisions which cannot be reconciled with each other, these
should be so interpreted that, if possible, effect could be given
to both. It, however, appears to us that the expression ‘for the G
purposes of this Constitution’ in Article 341 as well as in Article
342 do imply that the Scheduled Caste and the Scheduled
Tribes so specified would be entitled to enjoy all the
111
Articles 108 (4); 299 (2); 341(1); 342 (1); 342A (1); 366 (14); 366 (24); 366 (25); 366
(26C) and 367 (3)
112
1990 SCC (3) 130. H
1016 SUPREME COURT REPORTS [2021] 15 S.C.R.

A constitutional rights that are enjoyable by all the citizens as
such. Constitutional right, e.g., it has been argued that right
to migration or right to move from one part to another is a
right given to all — to Scheduled Castes or Tribes and to
non-scheduled castes or tribes. But when a Scheduled Caste
or Tribe migrates, there is no inhibition in migrating but when
B
he migrates, he does not and cannot carry any special rights
or privileges attributed to him or granted to him in the original
State specified for that State or area or part thereof. If that
right is not given in the migrated State it does not interfere
with his constitutional right of equality or of migration or of
C carrying on his trade, business or profession. Neither Article
14, 16, 19 nor Article 21 is denuded by migration but he must
enjoy those rights in accordance with the law if they are
otherwise followed in the place where he migrates. There
should be harmonious construction, harmonious in the sense
that both parts or all parts of a constitutional provision should
D
be so read that one part does not become nugatory to the
other or denuded to the other but all parts must be read in the
context in which these are used. It was contended that the
only way in which the fundamental rights of the petitioner
under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) could be
E given effect to is by construing Article 342 in a manner by
which a member of a Scheduled Tribe gets the benefit of that
status for the purposes of the Constitution throughout the
territory of India. It was submitted that the words “for the
purposes of this Constitution” must be given full effect. There
is no dispute about that. The words “for the purposes of this
F
Constitution” must mean that a Scheduled Caste so designated
must have right under Articles 14, 19(1)(d), 19(1)(e) and
19(1)(f) inasmuch as these are applicable to him in his area
where he migrates or where he goes. The expression “in
relation to that State” would become nugatory if in all States
G the special privileges or the rights granted to Scheduled
Castes or Scheduled Tribes are carried forward. It will also
be inconsistent with the whole purpose of the scheme of
reservation. In Andhra Pradesh, a Scheduled Caste or a
Scheduled Tribe may require protection because a boy or a
child who grows in that area is inhibited or is at disadvantage.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1017
& ANR. [S. RAVINDRA BHAT, J.]

In Maharashtra that caste or that tribe may not be so inhibited A
but other castes or tribes might be. If a boy or a child goes to
that atmosphere of Maharashtra as a young boy or a child
and goes in a completely different atmosphere or Maharashtra
where this inhibition or this disadvantage is not there, then
he cannot be said to have that reservation which will denude
B
the children or the people of Maharashtra belonging to any
segment of that State who may still require that protection.
After all, it has to be borne in mind that the protection is
necessary for the disadvantaged castes or tribes of
Maharashtra as well as disadvantaged castes or tribes of
Andhra Pradesh. Thus, balancing must be done as between C
those who need protection and those who need no protection,
i.e., who belong to advantaged castes or tribes and who do
not. Treating the determination under Articles 341 and 342
of the Constitution to be valid for all over the country would
be in negation to the very purpose and scheme and language
D
of Article 341 read with Article 15(4) of the Constitution.
14. Our attention was drawn to certain observations
in Elizabeth Warburton v. James Loveland [1832 HL 499] .
It is true that all provisions should be read harmoniously. It is
also true that no provision should be so read as to make other
provisions nugatory or restricted. But having regard to the E
purpose, it appears to us that harmonious construction enjoins
that we should give to each expression —”in relation to that
State” or “for the purposes of this Constitution” — its full
meaning and give their full effect. This must be so construed
that one must not negate the other. The construction that F
reservation made in respect of the Scheduled Caste or Tribe
of that State is so determined to be entitled to all the privileges
and rights under the Constitution in that State would be the
most correct way of reading, consistent with the language,
purpose and scheme of the Constitution. Otherwise, one has
to bear in mind that if reservations to those who are treated G
as Scheduled Caste or Tribe in Andhra Pradesh are also given
to a boy or a girl who migrates and gets deducted
(sic inducted) in the State of Maharashtra or other States
where that caste or tribe is not treated as Scheduled Caste or
Scheduled Tribe then either reservation will have the effect H
1018 SUPREME COURT REPORTS [2021] 15 S.C.R.

A of depriving the percentage to the member of that caste or
tribe in Maharashtra who would be entitled to protection or
it would denude the other non-Scheduled Castes or non-
Scheduled Tribes in Maharashtra to the proportion that they
are entitled to. This cannot be logical or correct result
designed by the Constitution.”
B
(emphasis supplied)
117. This Constitution Bench decision was followed in another
decision, again by five judges in Action Committee on Issue of
Caste Certificate to Scheduled Castes & Scheduled
Tribes in the State of Maharashtra & Anr v. Union of
C India & Anr.113, when this court reiterated its previous view in Marri
(supra) and observed further as follows:
“16. We may add that considerations for specifying a
particular caste or tribe or class for inclusion in the list of
Scheduled Castes/Schedule Tribes or backward classes in a
D given State would depend on the nature and extent of
disadvantages and social hardships suffered by that caste,
tribe or class in that State which may be totally non est in
another State to which persons belonging thereto may migrate.
Coincidentally it may be that a caste or tribe bearing the same
nomenclature is specified in two States but the considerations
E on the basis of which they have been specified may be totally
different. So also the degree of disadvantages of various
elements which constitute the input for specification may also
be totally different. Therefore, merely because a given caste
is specified in State A as a Scheduled Caste does not
necessarily mean that if there be another caste bearing the
F
same nomenclature in another State the person belonging to
the former would be entitled to the rights, privileges and
benefits admissible to a member of the Scheduled Caste of
the latter State “for the purposes of this Constitution”. This is
an aspect which has to be kept in mind and which was very
G much in the minds of the Constitution-makers as is evident
from the choice of language of Articles 341 and 342 of the
Constitution.”
118. The recent judgment in Bir Singh v. Delhi Jal Board (supra)
reiterated the previous two Constitution Bench judgments. It is useful to
113
H (1994) 5 SCC 244.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1019
& ANR. [S. RAVINDRA BHAT, J.]

notice the partly concurring judgment of Bhanumati, J. who observed A
that
“80. Clause (24) of Article 366 defines “Scheduled Castes”
and clause (25) of Article 366 defines “Scheduled Tribes”.
The latter means
“such tribes or tribal communities or parts of or groups within B
such tribes or tribal communities as are deemed under Article
342 to be “Scheduled Tribes” for the purposes of this
Constitution”.
81. Article 341(1) of the Constitution empowers the President,
in consultation with the Governor of the State concerned, to C
specify Scheduled Castes by public notification. Equally,
Article 342(1) of the Constitution empowers the President
“with respect to any State or Union Territory, and where it is
a State, after consultation with the Governor thereof, by public
notification, specify the tribes or tribal communities or parts D
of or groups within tribes or tribal communities which shall
for the purposes of this Constitution be deemed to be
“Scheduled Tribes” in relation to that State or Union Territory,
as the case may be”.
Article 342(2) of the Constitution empowers E
“Parliament, by law, to include in or exclude from the list of
“Scheduled Tribes” specified in a notification issued under
clause (1), any tribe or tribal community or part of or group
within any tribe or tribal community, but save as aforesaid a
notification issued under the said clause shall not be varied F
by any subsequent notification.”
Until the Presidential Notification is modified by appropriate
amendment by Parliament in exercise of the power under
Article 341(2) of the Constitution, the Presidential Notification
issued under Article 341(1) is final and conclusive and any G
caste or group cannot be added to it or subtracted by any
action either by the State Government or by a court on
adducing of evidence. In other words, it is the constitutional
mandate that the tribes or tribal communities or parts of or
groups within such tribes or tribal communities specified by
H
1020 SUPREME COURT REPORTS [2021] 15 S.C.R.

A the President, after consultation with the Governor in the
public notification, will be “Scheduled Tribes” subject to the
law made by Parliament alone, which may, by law, include in
or exclude from the list of “Scheduled Tribes” specified by
the President. Thereafter, it cannot be varied except by law
made by Parliament.
B
82. The President of India alone is competent or authorised
to issue an appropriate notification in terms of Articles 341(1)
and 342(1). Cumulative reading of Articles 338, 341 and 342
indicate that:
C (a) Only the President could notify castes/tribes as Scheduled
Castes/Tribes and also indicate conditions attaching to such
declaration. A public notification by the President specifying
the particular castes or tribes as SC/ST shall be final for the
purpose of Constitution and shall be exhaustive.

D (b) Once a notification is issued under clause (1) of Articles
341 and 342 of the Constitution, Parliament can by law
include in or exclude from the list of Scheduled Castes or
Scheduled Tribes, specified in the notification, any caste or
tribe but save for that limited purpose the notification issued
under clause (1), shall not be varied by any subsequent
E notification [ Ref. Action Committee on Issue of Caste
Certificate to SCs/STs in State of Maharashtra v. Union of
India, (1994) 5 SCC 244] .”
119. These three Constitution Bench judgments, Marri (supra),
Action Committee (supra) and Bir Singh (supra) therefore, have set
F the tone as it were, for the manner in which determination by the President
is to be interpreted, having regard to the definition clause in Article 366,
which has to apply for interpreting the particular expression in a consistent
manner, for the purpose of the Constitution. Thus, the expression SCs in
relation to a State for the “purpose of this Constitution”, means the
member of a SC declared to be so under the Presidential Notification.
G
The terms of such Presidential Notification insist that such a citizen
ought to be a resident of that concerned State or Union Territory. This
aspect is of some importance, given that there are a large number of
communities which are common in several States. However, the decisions
of this Court are uniform since Marri (supra) stated that it is only the
H citizens residing in a particular state who can claim the benefit of
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1021
& ANR. [S. RAVINDRA BHAT, J.]

reservation – either of that State or of the Centre for the purposes of the A
Constitution in relation to that State. Necessarily, therefore, the resident
of State A is entitled to claim reservation benefits under Articles 15(4)
and 16(4) if he or she resides (the residential qualification that needs to
be fulfilled is that specified by the concerned State) in that State, (i.e. A)
and none else. As a sequitur, if such a person or community or caste (of
B
state A) is also described as a Scheduled Caste in State B, for the purposes
of State services or admission to State institutions, he cannot claim the
benefits of reservation as a scheduled caste in such B State. However,
Bir Singh (supra) has made it clear that for the purposes of Union
employment and admissions to Union institutions the position is different
because SCs living within the territory of India in relation to one State or C
the other, are deemed to be SCs or STs for the purposes of this Constitution
in relation for the purposes of Union employment.
120. The interpretation of Articles 341 and 342 of the Constitution,
read with Articles 366 (24) and 366 (25), have to, in our opinion, be the
guiding factors in interpreting Article 366 (26C), which follows a similar D
pattern, i.e. of defining, for the purpose of the entire constitution,
with reference to the determination of those communities who are notified
as SEBCs, under Article 342A (which again uses the expression “for
the purpose of this constitution”).
121. Quite similarly, when Article 366 was amended by the Forty
Sixth amendment Act, and Article 366(29A) was introduced to Article E
366, this Court considered the previous amendments, which are the
6thAmendment to the Constitution and the 46 thAmendment which
amended Article 269 and Article 286, besides introducing Entry 92A to
the Union List. The Court went on to hold in a five-judge bench decision
in 20th Century Finance Corpn. Ltd. v. State of Maharashtra 114, that F
the interpretation adopted by this Court led to the inexorable conclusion
that a limitation was placed upon the States’ power of taxation. Article
366(29A) on the one hand, expanded the specie of sale which could be
the legitimate subject of taxation by the State, but at the same time, on
the other hand, the amendment also introduced limitations upon the State
power which was subjected to controls by Parliament. Therefore, in the G
context of the amendment the expression”sale” underwent alteration,
partly allowing and partly restricting states’ power to tax goods. This
court, after recounting the history of the previous litigation, held that:

114
(2000) 6 SCC 12 H
1022 SUPREME COURT REPORTS [2021] 15 S.C.R.

A “19. Following the decisions referred to above, we are of the
view that the power of State Legislatures to enact law to levy
tax on the transfer of right to use any goods under Entry 54
of List II of the Seventh Schedule has two limitations — one
arising out of the entry itself; which is subject to Entry 92-A
of List I, and the other flowing from the restrictions embodied
B
in Article 286. By virtue of Entry 92-A of List I, Parliament
has power to legislate in regard to taxes on sales or purchase
of goods other than newspapers where such sale or purchase
takes place in the course of inter-State trade or commerce.
Article 269 provides for levy and collection of such taxes.
C Because of these restrictions, State Legislatures are not
competent to enact law imposing tax on the transactions of
transfer of right to use any goods which take place in the
course of inter-State trade or commerce. Further, by virtue of
clause (1) of Article 286, the State Legislature is precluded
from making law imposing tax on the transactions of transfer
D
of right to use any goods where such deemed sales take place
(a) outside the State; and (b) in the course of import of goods
into the territory of India. Yet, there are other limitations on
the taxing power of the State Legislature by virtue of clause
(3) of Article 286. Although Parliament has enacted law under
E clause (3)(a) of Article 286 but no law so far has been enacted
by Parliament under clause (3)(b) of Article 286. When such
law is enacted by Parliament, the State Legislature would be
required to exercise its legislative power in conformity with
such law. Thus, what we have stated above, are the limitations
on the powers of State Legislatures on levy of sales tax on
F
deemed sales envisaged under sub-clause (d) of clause (29-
A) of Article 366 of the Constitution.”
122. In a similar manner, the expression, “unless the context
otherwise provides”[which is the controlling expression in Article 366(1)]
was interpreted by an earlier Constitution Bench in Builders’ Association
G of India v. Union of India115 when the amendment to Article 366 was
considered:
“32. Before proceeding further, it is necessary to understand
what sub-clause (b) of clause (29-A) of Article 366 of the
115
H (1989) 2 SCC 645
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1023
& ANR. [S. RAVINDRA BHAT, J.]

Constitution means. Article 366 is the definition clause of the A
Constitution. It says that in the Constitution unless the context
otherwise requires, the expressions defined in that article have
the meanings respectively assigned to them in that article.
The expression ‘goods’ is defined in clause (12) of Article
366 of the Constitution as including all materials, commodities
B
and articles.”
After discussing the previous decisions in respect of the
unamended provisions, the court stated that:
“The emphasis is on the transfer of property in goods (whether
as goods or in some other form). The latter part of clause C
(29-A) of Article 366 of the Constitution makes the position
very clear. While referring to the transfer, delivery or supply
of any goods that takes place as per sub-clauses (a) to (f) of
clause (29-A), the latter part of clause (29-A) says that “such
transfer, delivery or supply of any goods” shall be deemed to
be a sale of those goods by the person making the transfer, D
delivery or supply and a purchase of those goods by the
person to whom such transfer, delivery or supply is made.
Hence, a transfer of property in goods under sub-clause (b)
of clause (29-A) is deemed to be a sale of the goods involved
in the execution of a works contract by the person making E
the transfer and a purchase of those goods by the person to
whom such transfer is made. The object of the new definition
introduced in clause (29-A) of Article 366 of the Constitution
is, therefore, to enlarge the scope of ‘tax on sale or purchase
of goods’ wherever it occurs in the Constitution so that it may
include within its scope the transfer, delivery or supply of F
goods that may take place under any of the transactions
referred to in sub-clauses (a) to (f) thereof wherever such
transfer, delivery or supply becomes subject to levy of sales
tax. So construed the expression ‘tax on the sale or purchase
of goods’ in Entry 54 of the State List, therefore, includes a G
tax on the transfer of property in goods (whether as goods or
in some other form) involved in the execution of a works
contract also. The tax leviable by virtue of sub-clause (b) of
clause (29-A) of Article 366 of the Constitution thus becomes
subject to the same discipline to which any levy under entry
H
1024 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
B
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
C 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
G 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
H and conditions mentioned in clause (1), clause (2) and sub-
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1025
& ANR. [S. RAVINDRA BHAT, J.]

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
1026 SUPREME COURT REPORTS [2021] 15 S.C.R.

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,
D
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
E 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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1027
& ANR. [S. RAVINDRA BHAT, J.]

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
B
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 C
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
1028 SUPREME COURT REPORTS [2021] 15 S.C.R.

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.”
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1029
& ANR. [S. RAVINDRA BHAT, J.]

130. In Ashoka Kumar Thakur v. Union of India119 the issue A
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
B
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
1030 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
D 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
E 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
F 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
G 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.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1031
& ANR. [S. RAVINDRA BHAT, J.]

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 D
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 E
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
1032 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
B
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
C 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
D 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
E 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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1033
& ANR. [S. RAVINDRA BHAT, J.]

(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 E
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 F
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 G
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
1034 SUPREME COURT REPORTS [2021] 15 S.C.R.

A to exclude the state’s role altogether, in the task of making special
provisions under Article 15 (4) and Article 16 (4), in regard to identification
of SEBCs.
136. It is correct that Indra Sawhney clearly voiced the need for
the Central Government and the states to take measures for setting up
B 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
C 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
D 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
E 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
F 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
G 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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1035
& ANR. [S. RAVINDRA BHAT, J.]

Parliament, was of the view that there was no need of any inclusion or A
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
B
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 D
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 E
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 F
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
1036 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1037
& ANR. [S. RAVINDRA BHAT, J.]

piece of legislation or rule proceeds. But these are fictional A
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
B
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 C
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
D
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 E
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
F
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 G
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
1038 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
D 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
E 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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1039
& ANR. [S. RAVINDRA BHAT, J.]

“47. There is no doubt in our mind that keeping in view the A
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,
B
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
1040 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
B
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
C 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
D 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
E 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
F 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.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1041
& ANR. [S. RAVINDRA BHAT, J.]

148. It was asserted by the Attorney General and the states, that A
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
B
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 C
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 E
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 F
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 G
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
1042 SUPREME COURT REPORTS [2021] 15 S.C.R.

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.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1043
& ANR. [S. RAVINDRA BHAT, J.]

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 B
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 C
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 E
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 F
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
G
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
1044 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1045
& ANR. [S. RAVINDRA BHAT, J.]

“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
B
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 C
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 E
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 F
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
1046 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
D 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
E 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
F 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
G 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
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DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1047
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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 D
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 E
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 F
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
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1048 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
C 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
D 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
E 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
F 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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1049
& ANR. [S. RAVINDRA BHAT, J.]

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
B
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 C
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
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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
B
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
C 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
D 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
E 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
F 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
G 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
H that the existing pattern of identification and inclusion of SCs and STs
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1051
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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 C
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
D
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
1052 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
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DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1053
& ANR. [S. RAVINDRA BHAT, J.]

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 D
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 E
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 F
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 G
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
1054 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
D 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
E 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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1055
& ANR. [S. RAVINDRA BHAT, J.]

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 E
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 F
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
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1056 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
F 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
G 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
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DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1057
& ANR. [S. RAVINDRA BHAT, J.]

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
1058 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1059
& ANR. [S. RAVINDRA BHAT, J.]

181. Two issues arise with respect to the validity of provisions A
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
B
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 E
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 F
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
1060 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
B 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
C 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
D 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
E 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
G 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
H constitutional amendment and introduction of the Tenth
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1061
& ANR. [S. RAVINDRA BHAT, J.]

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 F
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 G
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
1062 SUPREME COURT REPORTS [2021] 15 S.C.R.

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
E 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
F 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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1063
& ANR. [S. RAVINDRA BHAT, J.]

power of the Parliament, i.e. to form a part of the basic A
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, B
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 C
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 E
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 F
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 G
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
1064 SUPREME COURT REPORTS [2021] 15 S.C.R.

A 186. Along similar lines, Krishna Iyer, J. had remarked as to what
kind of an amendment would be abhorrent and violate the basic structure
in Maharao Sahib Shri Bhim Singhji v. Union of India 139 in the
following terms:
“Therefore, what is a betrayal of the basic feature is not a
B mere violation of Article 14 but a shocking, unconscionable
or unscrupulous travesty of the quintessence of equal justice.”
187. By these parameters, the alteration of the content of state
legislative power in an oblique and peripheral manner would not constitute
a violation of the concept of federalism. It is only if the amendment
C takes away the very essence of federalism or effectively divests the
federal content of the constitution, and denudes the states of their effective
power to legislate or frame executive policies (co-extensive with
legislative power) that the amendment would take away an essential
feature or violate the basic structure of the Constitution. Applying such
a benchmark, this court is of the opinion that the power of identification
D of SEBCs hitherto exercised by the states and now shifted to the domain
of the President (and for its modification, to Parliament) by virtue of
Article 342A does not in any manner violate the essential features or
basic structure of the Constitution. The 102nd Amendment is also not
contrary to or violative of proviso to Article 368 (2) of the Constitution of
E India. As a result, it is held that the writ petition is without merit; it is
dismissed.
Conclusions
188. In view of the above discussion, my conclusions are as
follows:
F
(1) Re Point No. 1: Indra Sawhney (supra) does not require
to be referred to a larger bench nor does it require
reconsideration in the light of subsequent constitutional
amendments, judgments and changed social dynamics of
the society, for the reasons set out by Ashok Bhushan, J.
G and my reasons, in addition.
(2) Re Point No 2: The Maharashtra State Reservation (of seats
for admission in educational institutions in the State and for
appointments in the public services and posts under the
139
H (1981) 1 SCC 166
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1065
& ANR. [S. RAVINDRA BHAT, J.]

State) for Socially and Educationally Backward Classes A
(SEBC) Act, 2018 as amended in 2019 granting 12% and
13% reservation for Maratha community in addition to 50%
social reservation is not covered by exceptional
circumstances as contemplated by Constitution Bench in
Indra Sawhney’s case. I agree with the reasoning and
B
conclusions of Ashok Bhushan, J. on this point.
(3) Re Point No. 3: I agree with Ashok Bhushan, J. that the
State Government, on the strength of Maharashtra State
Backward Commission Report chaired by M.C. Gaikwad
has not made out a case of existence of extraordinary
situation and exceptional circumstances in the State to fall C
within the exception carved out in Indra Sawhney.
(4) Re Point No 4:Whether the Constitution One Hundred and
Second Amendment deprives the State Legislature of its
power to enact a legislation determining the socially and
economically backward classes and conferring the benefits D
on the said community under its enabling power?; and
(5) Re. Point No. 5 Whether, States’ power to legislate in relation
to “any backward class” under Articles 15(4) and 16(4) is
anyway abridged by Article 342(A) read with Article
366(26c) of the Constitution of India. On these two E
interrelated points of reference, my conclusions are as
follows:
(i) By introduction of Articles 366 (26C) and 342A through
the 102nd Constitution of India, the President alone, to the
exclusion of all other authorities, is empowered to identify F
SEBCs and include them in a list to be published under
Article 342A (1), which shall be deemed to include SEBCs
in relation to each state and union territory for the purposes
of the Constitution.
(ii) The states can, through their existing mechanisms, or even G
statutory commissions, only make suggestions to the
President or the Commission under Article 338B, for
inclusion, exclusion or modification of castes or communities,
in the list to be published under Article 342A (1).
H
1066 SUPREME COURT REPORTS [2021] 15 S.C.R.

A (iii) The reference to the Central List in Article 342A (2) is the
one notified by the President under Article 342A (1). It is to
be the only list for all purposes of the Constitution, in relation
to each state and in relation to every union territory. The
use of the term “the Central List” is only to refer to the list
prepared and published under Article 342A (1), and no other;
B
it does not imply that the states have any manner of power
to publish their list of SEBCs. Once published, under Article
342A (1), the list can only be amended through a law enacted
by Parliament, by virtue of Article 342A (2).
(iv) In the task of identification of SEBCs, the President shall
C be guided by the Commission set up under Article 338B; its
advice shall also be sought by the state in regard to policies
that might be framed by it. If the commission prepares a
report concerning matters of identification, such a report
has to be shared with the state government, which is bound
D to deal with it, in accordance with provisions of Article
338B. However, the final determination culminates in the
exercise undertaken by the President (i.e. the Central
Government, under Article 342A (1), by reason of Article
367 read with Section 3 (8) (b) General Clauses Act).
E (v) The states’ power to make reservations, in favour of
particular communities or castes, the quantum of
reservations, the nature of benefits and the kind of
reservations, and all other matters falling within the ambit
of Articles 15 and 16 – except with respect to identification
of SEBCs, remains undisturbed.
F
(vi) The Commission set up under Article 338B shall conclude
its task expeditiously, and make its recommendations after
considering which, the President shall expeditiously publish
the notification containing the list of SEBCs in relation to
states and union territories, for the purpose of the
G Constitution.
(vii) Till the publication of the notification mentioned in direction
(vi), the existing lists operating in all states and union
territories, and for the purposes of the Central Government
and central institutions, continue to operate. This direction
H is issued under Article 142 of the Constitution of India.
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1067
& ANR. [S. RAVINDRA BHAT, J.]

(6) Re Point No. 6: Article 342A of the Constitution by denuding A
States power to legislate or classify in respect of “any
backward class of citizens” does not affect or damage the
federal polity and does not violate the basic structure of the
Constitution of India.

189. The reference is answered in the above terms. The appeals B
and writ petitions are therefore, disposed of in terms of the operative
order of Bhushan, J. in para 444 of his Judgment.

L. NAGESWARA RAO, J.

1. I have carefully gone through the erudite and scholarly opinions C
of Justice Ashok Bhushan and Justice S. Ravindra Bhat. So far as the
question Nos.1, 2 and 3 are concerned, they are in unison. There is a
difference of opinion in relation to question Nos. 4, 5 and 6. I am in
agreement with the opinion of Justice Ashok Bhushan in respect of
question Nos.1, 2 and 3. As these issues have been dealt with exhaustively D
by Justice Ashok Bhushan, I do not have anything further to add.

2. Question Nos.4, 5 and 6 pertain to the interpretation of Article
342 A of the Constitution of India. On these questions, I am unable to
persuade myself to accept the conclusion reached by Justice Ashok
E
Bhushan. I agree with the denouement of the judgment of Justice S.
Ravindra Bhat on issue Nos.4, 5 and 6.

3. In view of the cleavage of opinion on the interpretation of Article
342 A of the Constitution, it is my duty to give reasons for my views in
accord with the judgment of Justice S. Ravindra Bhat. In proceeding to F
do so, I am not delving into those aspects which have been dealt with by
him.

4. Article 342 A which falls for interpretation is as follows: -

342 A. Socially and educationally backward classes. — (1) G
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
H
1068 SUPREME COURT REPORTS [2021] 15 S.C.R.

A backward classes in relation to that State or Union territory,
as the case may be.
(2) Parliament may by law include in or exclude from the
Central List of socially and educationally backward classes
specified in a notification issued under clause (1) any socially
B and educationally backward class, but save as aforesaid a
notification issued under the said clause shall not be varied
by any subsequent notification.
5. Article 366 (26 C) which is also relevant is as under: -

C 366. Definitions. Unless the context otherwise requires, the
following expressions have the meanings hereby respectively
assigned to them, that is to say—
xx xx xx xx xx

D [(26C) ¯socially and educationally backward classes means
such backward classes as are so deemed under article 342 A
for the purposes of this Constitution;]
6. Before embarking upon the exercise of construing the above
Articles, it is necessary to refer to the cardinal principles of interpretation
E of the Constitution. Constitution is intended to endure for ages to come,
and, consequently to be adapted to the various crises of human affairs.
We must not forget that it is the Constitution we are expounding1. The
Constitution is a living and organic document which requires to be
construed broadly and liberally. I am reminded of the word of caution
by Benjamin Cardozo who said that “a Judge is not a knight errant roaming
F at will in pursuit of his own ideal of beauty or of goodness. Judge is not
to innovate at pleasure”.2 Rules which are applied to the interpretation
of other statutes, apply to the interpretation of the Constitution3. It may
be desirable to give a broad and generous construction to the
constitutional provisions, but while doing so the rule of “plain meaning”
G 1
McCulloch v. Maryland, 17 U.S. 316 (1819)
2
Benjamin Cardozo, the Nature of Judicial Process, (New Haven: Yale University
Press, 13th Edn., 1946), 141.
3
Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act,
1938

H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1069
& ANR. [L. NAGESWARA RAO, J.]

or “literal” interpretation, which remains “the primary rule”, has also to A
be kept in mind. In fact, the rule of “literal construction” is the safe rule
even while interpreting the Constitution unless the language used is
contradictory, ambiguous, or leads really to absurd results4. The duty of
the judicature is to act upon the true intention of the legislature, the mens
or sententialegis. (See: G. Narayanaswami v. G. Pannerselvam 5,
B
South Asia Industries Private Ltd v. S. Sarup Singh and others6,
Institute of Chartered Accountants of India v. Price Waterhouse7
and J.P. Bansal v. State of Rajasthan8). The first and primary rule of
construction is that the intention of the legislature must be found in the
words used by the legislature itself9. Oliver Wendell Holmes Jr. has
famously said in a letter, “I do not care what their intention was. I only C
want to know what the words mean.”10 If the language of the meaning
of the statute is plain,there is no need for construction as legislative
intention is revealed by the apparent meaning11. Legislative intent must
be primarily ascertained from the language used in statute itself.12
7. In his bookPurposive Interpretation in Law,13Aharon Barak D
says that constitutional language like the language of any legal text plays
a dual role. On the one hand, it sets the limits of interpretation. The
language of the Constitution is not clay in the hands of the interpreter, to
be molded as he or she sees fit. A Constitution is neither a metaphor nor
a non-binding recommendation. On the other hand, the language of the E
Constitution is a source for its purpose. There are other sources, to be
sure, but constitutional language is an important and highly credible source
of information. The fact that we may learn the purpose of a Constitution
from sources external to it does not mean that we can give a Constitution
a meaning that is inconsistent with its explicit or implicit language.
Interpretation cannot create a new constitutional text. Talk of Judges F
4
Kuldip Nayar v. Union of India, (2006) 7 SCC 1
5
(1972) 3 SCC 717
6
1965 SCR (3) 829
7
(1997) 6 SCC 312
8
(2003) 5 SCC 134
9
Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 (1) SCR 360
G
10
Cited in Felix Frankfurter, Some Reflections on the Reading of Statutes, Columbia Law
Review, Vol. 47, No. 4, 527-546 (1947), 538.
11
Adams Express Company v. Commonwealth of Kentucky, 238 US 190 (1915)
12
United States v. Goldenberg, 168 US 95 (1897)
13
Aharon Barak, Purposive Interpretation in Law, (Sari Bashi transl.), (Princeton:
Princeton University Press, 2005). H
1070 SUPREME COURT REPORTS [2021] 15 S.C.R.

A amending the Constitution through their interpretation of the Constitution
is just a metaphor. The claim that a constitutional text limits but does not
command is true only for the limited number of cases in which, after
exhausting all interpretive tools, we can still extract more than one legal
meaning from the constitutional language and must therefore leave the
final decision to judicial discretion. In these exceptional cases, language
B
provides a general direction but does not draw a precise map of how to
reach the destination. Usually, however, constitutional language sets not
only the limits of interpretation, but also its specific content. 14
8. It is a cardinal principle applicable to all kinds of statutes that
you may not for any reason attach to a statutory provision a meaning
C
which the words of that provision cannot reasonably bear. If they are
capable of more than one meaning, then you can choose between these
meanings, but beyond that the Court must not go.15 Lord Parker, CJ
observed in R. v. Oakes16 there is no ground for reading in words
according to what may be ‘the supposed intention of Parliament’.
D
9. Justice Ashok Bhushan in his opinion at para 346 rightly held
that the elementary principle of interpreting the Constitution or a statute
is to look into the words used in the statute and when the language is
clear, the intention of the legislature is to be gathered from the language
used. He further opined that aid to interpretation is resorted to only when
E there is some ambiguity in words or expression used in the statute. Justice
Bhushan in State (NCT of Delhi) v. Union of India 17 held that the
constitutional interpretation has to be purposive taking into consideration
the need of the times and constitutional principles. The intent of framers
of the Constitution and object and purpose of constitutional amendment
always throw light on the constitutional provisions but for interpreting a
F
particular constitutional provision, the constitutional scheme and the
express language employed cannot be given a go-by. He further held
that the purpose and intent of the constitutional provisions have to be
found from the very constitutional provisions which are up for
interpretation.
G
10. In the 183rd Report of the Law Commission of India, Justice
M. Jagannadha Rao observed that a statute is a will of legislature
14
Id, 374-375.
15
Jones v D.P.P. [1962] AC. 635
16
[1959] 2 Q.B. 350
17
H (2018) 8 SCC 501
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1071
& ANR. [L. NAGESWARA RAO, J.]

conveyed in the form of text. It is well settled principle of law that as a A
statute is an edict of the legislature, the conventional way of interpreting
or construing the statute is to see the intent of the legislature. The intention
of legislature assimilates two aspects. One aspect carries the concept
of ‘meaning’ i.e. what the word means and another aspect conveys the
concept of ‘purpose’ and ‘object’ or ‘reason’ or ‘approach’ pervading
B
through the statute. The process of construction, therefore, combines
both liberal and purposive approaches. However, necessity of
interpretation would arise only where a language of the statutory provision
is ambiguous, not clear or where two views are possible or where the
provision gives a different meaning defeating the object of the statute.
He supported his view by referring to two judgments of this Court in C
R.S. Nayak v. A.R. Antulay18 and Grasim Industries Ltd. v. Collector
of Customs, Bombay19. It was held in R.S. Nayak (supra) that the
plainest duty of the Court is to give effect to the natural meaning of the
words used in the provision if the words of the statute are clear and
unambiguous.
D
11. The words of a statute, when there is a doubt about their
meaning, are to be understood in the sense in which they best harmonise
between the subject of the enactment and the object which the legislature
has used. Their meaning is found not so much in a strictly grammatical
or etymological propriety of language, nor even in its popular use, as in E
the subject or in the occasion on which they are used, and the object to
be attained.20
12. It is a recognised rule of interpretation of statutes that the
expressions used therein should ordinarily be understood in a sense in
which they best harmonise with the object of the statute, and which F
effectuate the object of the legislature21. However, the object-oriented
approach cannot be carried to the extent of doing violence to the plain
language used by re-writing the section or structure words in place of
the actual words used by the legislature22. The logical 1corollary that
18
(1984) 2 SCC 183 G
19
(2002) 4 SCC 297
20
Workmen of Dimakuchi Tea Estate v Managenment of Dimakuchi Tea Estate, 1958
SCR 1156
21
M/s New India Sugar Mills Ltd v. Commissioner of Sales Tax, Bihar 1963 SCR Supl.
(2) 459
22
C. I. T v. N. C. Budharaja and Co. 1994 SCC Supl. (1) 280
H
1072 SUPREME COURT REPORTS [2021] 15 S.C.R.

A flows from the judicial pronouncements and opinion of reputed authors
is that the primary rule of construction is literal construction. If there is
no ambiguity in the provision which is being construed there is no need
to look beyond. Legislative intent which is crucial for understanding the
object and purpose of a provision should be gathered from the language.
The purpose can be gathered from external sources but any meaning
B
inconsistent with the explicit or implicit language cannot be given.
13. In Aron Soloman v. Soloman & Co.23 the House of Lords
observed that the intention of legislature is a ‘slippery phrase’. What
the legislature intended can be legitimately ascertained from that which
it has chosen to enact, either in express words or by reasonable and
C
necessary implication. A construction which furthers the purpose or object
of an enactment is described as purposive construction. A purposive
construction of an enactment is one which gives effect to the legislative
purpose by (a) following the literal meaning of the enactment where that
meaning is in accordance with the legislative purpose or (b) applying a
D strained meaning where the literal meaning is not in accordance with the
legislative purpose.24 If that is the case, there is no gainsaying that
purposive interpretation based on the literal meaning of the enactment
must be preferred.
14. In case of ambiguity this Court has adopted purposive
E interpretation of statutory provisions by applying rule of purposive
construction. In the instant case, the deliberations before the Select
Committee and its report and Parliamentary Debates were relied upon
by the Respondents in their support to asseverate that the object of
Article 342 A is to the effect that the power of the State legislature to
identify socially and educationally backward classes is not taken away.
F Ergo, Article 342 A requires to be interpreted accordingly.
15. The exclusionary rule by which the historical facts of legislation
were not taken into account for the purpose of interpreting a legislation
was given a decent burial by the House of Lords in Pepper (Inspector
of Taxes) v Hart25. In Kalpana Mehta and Ors. v. Union of India
G and Ors.26,a five Judge Bench of this Court held that the Parliamentary
23
1897 AC 22
24
Bennion on Statutory Interpretation, Fifth Edition Pg. 944
25
1993 AC 593
26
(2018) 7 SCC 1
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1073
& ANR. [L. NAGESWARA RAO, J.]

Standing Committee report can be taken as anaid of for the purpose of A
interpretation of a statutory provision. Wherever the reliance on such
reports is necessary, they can be used for assisting the court in gathering
historical facts. In accord with the said judgment, the deliberations of
the report of the Select Committee can be utilisedas an extrinsic aid for
interpretation of Article 342 A, in case there is any ambiguity in the
provision. B

16. In R v. DPP ex-parte Duckenfield27, Laws, CJ, cautioned
about the great dangers in treating government pronouncements, however,
helpful, as an aid to statutory construction. In Black-Clawson
International Ltd.28 taking the opinion of a minister, or an official or a
C
committee, as to the intended meaning in particular application of a clause
or a phrase was held to be stunting of the law and not a healthy
development. The crucial consideration when dealing with enacting
historicalmaterials is the possibility that Parliament changed its mind, or
for some reason departed from it29. In Letang v. Cooper30 it was held
that enacting history must be inspected with great care and caution. As D
an indication of legislative intention, it is very far behind the actual words
of the Act. While setting out the relevant portions of the report of the
Select Committee, Justice Bhat pointed out that the report reflected the
opinions of both sides before concluding that the concern of the States
will be considered in accordance with the procedure under Article 341
& Article 342. There is no doubt that the Minister was assuaging the E
concerns of the Members by stating that the power of the States to
identify backward classes is not being disturbed. I am convinced that
there is no reason to depart from the text which is in clear terms and rely
upon the legislative history to construe Article 342 A contrary to the
language. I am not persuaded to agree with the submissions of the learned F
Attorney General and the other counsel for the States that Article 342 A
has to be interpreted in light of the Select Committee report and discussion
in the Parliament, especially when the legislative language is clear and
unambiguous.
17. Where the Court is unable to find out the purpose of an G
enactment, or is doubtful as to its purposes, the Court is unlikely to depart
27
[1999] 2 All ER 873
28
1975 AC 591
29
Assam Railways and Trading Co Ltd v. Inland Revenue, 1935 AC 445
30
[1965] 1 QB 232
H
1074 SUPREME COURT REPORTS [2021] 15 S.C.R.

A from the literal meaning31. There is no dispute that the statement of
objects and reasons do not indicate the purpose for which Article 342 A
was inserted. During the course of the detailed hearing of these matters,
we repeatedly probed from counsel representingboth sides about the
purpose for inserting Article 342 A in the Constitution. No satisfactory
answer was forthcoming. In spite of our best efforts, we could not unearth
B
the reason for introduction of Article 342 A. As the purpose is not clear,
literal construction of Article 342A should be resorted to.
18. Craies culled out the following principles of interpretation of
legislation: -
C 1. Legislation is always to be understood first in accordance
with its plain meaning.
2. Where the plain meaning is in doubt, the Courts will start
the process of construction by attempting to discover, from
the provisions enacted, to the broad purpose of the legislation.
D
3. Where a particular reading would advance the purpose
identified, and would do no violence to the plain meaning of
the provisions enacted, the Courts will be prepared to adopt
that reading.
E 4. Where a particular reading would advance the purpose
identified but would strain the plain meaning of the provisions
enacted, the result will depend on the context and, in
particular, on a balance of the clarity of the purpose identified
and the degree of strain on the language.
F 5. Where the Courts concluded that the underlined purpose
of the legislation is insufficiently plain, or cannot be advanced
without an unacceptable degree of violence to the language
used, they will be obligated, however regretfully in the
circumstances of the particular case, to leave to the
G legislature the task of extending or modifying the legislation32.
19. To ascertain the plain meaning of the legislative language, we
proceed to construe Article 342 A of the Constitution of India. Article
342 A was inserted in the Constitution by the Constitution (102 nd
31
Section 309, Bennion on Statutory Interpretation, 5 th Edition.
32
H Craies on Legislation, 9th Edition Pg. 643
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1075
& ANR. [L. NAGESWARA RAO, J.]

Amendment) Act, 2017. A plainreading of Article 342 A (1) would disclose A
that the President shall specify the socially and educationally backward
classes by a public notification after consultation with the Governor.
Those specified as socially and educationally backward classes in the
notification shall be deemed to be socially and educationally backward
classes in relation to that State or Union Territory for the purposes of the
B
Constitution. Article 342 A (2) provides that inclusion or exclusion from
the list of socially and educationally backward classes specified in the
notification under Article 342 A (1) can be only done by law made by the
Parliament. The word ‘Central list’ used in Article 342 A (1) had given
rise to conflicting interpretations. Article 366 deals with definitions. Sub-
Article 26 (C) was inserted in Article 366 of the Constitution by the C
Constitution (102nd Amendment) Act, 2017according to which, socially
and educationally backward classes shall mean such backward classes
as are so deemed under Article 342 A for the purposes of the Constitution.
The use of words ‘means’ indicates that the definition is a hard-and-fast
definition, and no other meaning can be assigned to the expression that
D
is put down in definition. (See: Gough v. Gough, (1891) 2 QB 665,
Punjab Land Development and Reclamation Corporation Ltd. v.
Presiding Officer, Labour Court (1990) 3 SCC 682 and P. Kasilingam
v. P.S.G. College of Technology, 1995 SCC Supl. (2) 348.) When a
definition clause is defined to “mean” such and such, the definition is
prima facie restrictive and exhaustive.33 E
20. The legislature can define its own language and prescribe
rules for its construction which will generally be binding on the Courts34.
Article 366 (26) (c) makes it clear that, it is only those backward classes
as are so deemed under Article 342 A which shall be considered as
socially and educationally backward classes for the purposes of the F
Constitution and none else. No other class can claim to belong to ‘socially
and educationally backward classes’ for the purposes of the Constitution,
except those backward classes as are so deemed under Article 342 A of
the Constitution.
21. This Court in Sudha Rani Garg v. Jagdish Kumar 35 dealt G
with the word ‘deemed’ in the following manner: -
33
Indra Sarma v. V. K. V. Sarma, (2013) 15 SCC 755
34
Collins v. Texas, 223 U.S. 288
35
(2004) 8 SCC 329
H
1076 SUPREME COURT REPORTS [2021] 15 S.C.R.

A “The word ‘deemed’ is sometimes used to impose for the purposes
of a statute an artificial construction of a word or phrase that
would not otherwise prevail. Sometimes it is used to put beyond
doubt a particular construction that might otherwise be certain.
Sometimes it is used to give a comprehensive description that
B includes what is obvious, what is uncertain and what is, in the
ordinary sense, impossible”.

22. Lord Asquith in East End Dwellings Co. Ltd v. Finsbury
Borough Council36 held that, “if one is bidden to treat imaginary state
of affairs as real, one must surely, unless prohibited from doing so, also
C imagine as real the consequences and incidents which, if the putative
state of affairs had in fact existed, must inevitably have flowed from it
or accompanied it. The use of the word ‘deemed’ in the definition clause
as well as in Article 342 A puts it beyond doubt that it is only those
backward classes which are specified in the notification that may be
D issued by the President, who can claim to be socially and educationally
backward classes for the purposes of the Constitution.

23. There is no equivocacy in the legislative language used in
Article 342 A. The ordinary meaning that flows from a simple reading of
Article 342 A is that the President after consultation with the Governor
E of a State or Union Territory may issue a public notification specifying
socially and educationally backward classes. It is those socially and
educationally backward classes who shall be deemed as socially and
educationally backward classes in relation to that State or Union Territory
for the purposes of the Constitution. There is no obscurity in Article 342
F A (1) and it is crystal clear that there shall be one list of socially and
educationally backward classes which may be issued by the President.
Restricting the operation of a list to be issued under Article 342 A (1) as
not being applicable to States can be done only by reading words which
are not there in the provision. According to Aharon Barak,”the structure
G of the Constitution can be given implicit meaning to what is written
between the lines of the text, but it cannot add lines to the text. To do so
would be to fill a gap or lacuna, using interpretative doctrines”.37 There
is no reason for reading Article 342 A (1) in any other manner except,
36
[1952] AC 109
37
Barak supra, 374.
H
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER 1077
& ANR. [L. NAGESWARA RAO, J.]

according to the plain legal meaning of the legislative language. The A
words ‘Central list’ is used in Article 342 A (2) have created some
controversy in construing Article 342 A. To find out the exact connotation
of a word in a statute, we must look to the context in which it is used38.
No words have an absolute meaning, no words can be defined in vacuo,
or without reference to some context39. Finally, the famous words of B
Justice Oliver Wendell Holmes Jr. “the word is not a crystal transparent
and unchanged; it is a skin of a living thought and may vary in colour and
content according to the circumstances and the time in which it is used”.40

24. Article 342 A (2) provides that inclusion or exclusion from
Central list of socially and educationally backward classes specified in a C
notification issued under Sub-Clause 1 can be done only by the Parliament.
A plain reading of the provision can lead to the following deduction: -

a. There is a notification issued by the President under clause
(1).
D
b. The notification specifies socially and educationally
backward classes.

c. Inclusion or exclusion can be done only by law made by the
Parliament.
E
d. Save otherwise, the notification shall not be varied by any
subsequent notification.

e. The list notified is referred to as “Central list”.

25. I find it difficult to agree with the submissions made on behalf F
of the Respondents that the use of words ‘central list’ would restrict the
scope and amplitude of the notification to be issued under Article 342 A
(1). There is only one list that can be issued by the President specifying
the socially and educationally backward classes and only those classes
are treated as socially and educationally backward classes for the G
purposes of the Constitution. Taking cue from the National Commission
38
Nyadar Singh v. Union of India 1988 4 SCC 170
39
Professor HA Smith cited in Union of India v. Sankalchand Himmat Lal Seth [1977)
4 SCC 193
40
Towne v. Eisner, 245 U.S. 425 (1918)
H
1078 SUPREME COURT REPORTS [2021] 15 S.C.R.

A for Backward Classes Act, 1993, the Respondents argued that the words
‘Central list’ is with reference only to appointments to Central services
and admission in Central educational institutions. Reading ‘Central list’
in that manner would be curtailing the width of Article 342 A (1). If so
read, the sweep of Sub-Clause (1) shall be minimized. Moreover, to
achieve the said meaning, words which are not in Article 342 A (1) have
B to be read into it. Contextually, the words Central list in Article 342 A (2)
can be only with reference to the list contained in the notification which
may be issued under Article 342 A (1). It is well settled law that the
provisions of the Constitution have to be harmoniously construed and it
is apparent from Article 342 A (1) and (2) that there is no scope for any
list of socially and educationally backward classes, other than the list to
C
be notified by the President. As the other expressions ‘for the purposes
of the Constitution’ and ‘unless the context otherwise requires’ have
been dealt with by Justice Bhat, I have nothing more to add to the
construction placed by him on the said expressions. To avoid any
confusion, I endorse the conclusion of Justice Ashok Bhushan on question
D Nos. 1, 2 and 3 and the final order proposed in Para No. 444 of his
judgment. Insofar as question Nos. 4, 5 and 6 are concerned, I am in
agreement with the opinion of Justice S. Ravindra Bhat.
26. A conspectus of the above discussion would be that only those
backward classes included in the public notification under Article 342 A
E shall be socially and educationally backward classes for the purposes of
the Constitution.
HEMANT GUPTA, J.
I have gone through the judgments authored by learned Hon’ble
Shri Ashok Bhushan, J., Hon’ble Shri S. Ravindra Bhat, J. and also the
F order authored by Hon’ble Shri L. Nageswara Rao, J. I am in agreement
with the reasoning and the conclusion on the Question Nos. 1, 2 and 3 in
the judgment rendered by Hon’ble Shri Ashok Bhushan, J., as well as
additional reasons recorded by Hon’ble Shri S. Ravindra Bhat, J. and by
Hon’ble Shri L. Nageswara Rao, J.
G I entirely agree with the reasoning and the conclusions in the
Judgment and order authored by Hon’ble Shri S. Ravindra Bhat, J. and
Hon’ble Shri L. Nageswara Rao, J. on Question Nos. 4, 5 and 6.

Bibhuti Bhushan Bose Matters disposed of.
H