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

- **Citation:** [2021] 15 S.C.R. 715
- **Court:** Supreme Court of India
- **Decided:** 2021-05-05
- **Case number:** Civil Appeal No.3123 of 2020
- **Bench:** Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-jaishri-laxmanrao-patil-v-the-chief-minister-ors-35390
- **Pages:** 364

## Headnote

Reservation - Constitution of India - Arts. 15 and 16 -
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
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
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
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
- 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
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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 subclause (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
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,
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
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
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
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
circumsta

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 [2021] 15 S.C.R. 715
715
 DR. JAISHRI LAXMANRAO PATIL
v.
THE CHIEF MINISTER & ORS.
(Civil Appeal No.3123 of 2020)
MAY 05, 2021
[ASHOK BHUSHAN, L. NAGESWARA RAO,
S. ABDUL NAZEER, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
Reservation - Constitution of India - Arts. 15 and 16 -
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
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
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
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
- 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
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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 subclause (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
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,
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
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
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
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
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
50%, and containing the Maratha in pre-existing reservation for
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OBC shall not be justice to them, which circumstances is not covered
under the parameters indicated in Indra Sawhney's case as extraordinary 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
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
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
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
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
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
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
DR. JAISHRI LAXMANRAO PATIL v. THE CHIEF MINISTER
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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
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
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
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
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):
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
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
Amendment) Act challenged, on ground that it violated the basic
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structure, or essential features of the Constitution - Article 342A of
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.)]:
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
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
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
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 - 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
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.
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 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
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
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
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)
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
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
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
Admission in Educational Institutions in the State and for
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appointments in the public services and posts under the State)
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
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
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
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
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
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
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?
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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?
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
backward class" under Articles 15(4) and 16(4) is anyway abridged
by Article 342(A) read with Article 366(26C) of the Constitution
of India?
6. Whether, Article 342A of the Constitution abrogates
States power to legislate or classify in respect of "any backward
class of citizens" and thereby affects the federal policy / structure
of the Constitution of India?
Disposing of the matters, the Court
per Ashok Bhushan, J. (for himself and for S. Abdul Nazeer,
J.)
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
exist for which extreme caution is to be exercised. [Para 444][940C-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
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
of striking a balance between the rights under Article 15(1) and
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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.
[Para 444][940-D-F]
1.4. Providing reservation for advancement of any socially
and educationally backward class in public services is not the
only means and method for improving the welfare of backward
class. The State ought to bring other measures including
providing educational facilities to the members of backward class
free of cost giving concession in fee, providing opportunities for
skill development to enable the candidates from the backward
class to be self-reliant. [Para 444][940-G]
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]
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]
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.
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]
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]
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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][941E-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]
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
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
of the judgment, when the Commission took the view that on the
quantifiable data ceiling of 50% can be breached. [Para 444][942A-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
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
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.
The exceeding of ceiling limit without there being any extra-
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ordinary circumstances clearly violates Article 14 and 16 of the
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
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
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
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]
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
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
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
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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
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
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
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
are not socially and educationally backward class. [Para 444][943F-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
is to be gathered from the language used. The aid to
interpretation is resorted to only when there is some ambiguity
in words or expression used in the statute. The rule of
harmonious construction, the rule of reading of the provisions
together as also rule of giving effect to the purpose of the statute,
and few other principles of interpretation are called in question
when aids to construction are necessary in particular context.
[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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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. [Para 444][944-D-E]
1.25. The law is well settled in this country 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. [Para 444][944-E-F]
1.26. 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. 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
'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]
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
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]
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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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
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
(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
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)
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]
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
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
and struck down. [Para 444][946-F]
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T.M.A. Pai Foundation and others v. State of Karnataka
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
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.
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,
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
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
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,
(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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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
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
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
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
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 Advocateson-Record Association and others v. Union of India,
1993 (4) SCC 441 : [1993] 2 Suppl. SCR 659; Ashoka
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]
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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558 : [1991] 3 Suppl. SCR 121; Society for Un-aided
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
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;
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]
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
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
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.)
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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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
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.
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
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,
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 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.