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Till the 102nd amendment, definition & the manner of identification of BCs & SEBCs were silent: SC

The interpretation suggested by the respondents, and by Ashok Bhushan, J., that the power of the states, which existed till the 102nd 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 SEBC in the Constitution, and provided for one notification under Article 342A issued by the President, which would “specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory”, and then, restricted the width of the term “deemed for purposes of this Constitution” by giving primacy to the term “Central List”. Such an interpretation restricts the specification of a community as backward, in relation to that State or Union territory, only for purposes of the Central List, i.e., for purposes of central government employment and Central Institutions. Such an interpretation with respect, is strained; it deprives plain and grammatical meaning to the provisions introduced by the 102nd Amendment, has the effect of tying the hands of the Central Government, and at the same time, grants the states unlimited latitude in the manner of inclusion of any class of citizens as backward.” (Page 539, Para 149)

DR. JAISHRI LAXMANRAO PATIL V/S THE CHIEF MINISTER & ORS

Civil Appeal No. 3123 of 2020

With

Civil Appeal No. 3124 of 2020 Civil Appeal No .3133 of 2020

Civil Appeal No .3134 of 2020 Civil Appeal No .3131 of 2020

Civil Appeal No .3129 of 2020

W.P.(C) No .915 of 2020

W.P.(C) No .504 of 2020

W.P.(C) No .914 of 2020

Civil Appeal No .3127 of 2020

Civil Appeal No .3126 of 2020

Civil Appeal No .3125 of 2020

Civil Appeal No .3128 of 2020

Civil Appeal No .3130 of 2020

W.P.(C) No .938 of 2020


5 May, 2021


The Hon’ble Supreme Court consisting of Justice Ashok Bhushan, Justice S. Abdul Nazeer, Justice L. Nageshwara Rao, Justice Hemant Gupta, and Justice S. Ravindra Bhat held in this matter that the provisions of a Maharashtra law providing reservation to the Maratha community, which took the total quota in the state above the 50 per cent ceiling set by the court in its 1992 Indra Sawhney (Mandal) judgment. A detailed note has been made after going through the judgements of all the judges referring to the case.


Justice Ashok Bhushan and Justice S. Abdul Nazeer held in this case that 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 the ceiling limit without there being any extra-ordinary circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires. With regard to the above they held that “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 the 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.” (Para 444, Point 22)


Before concluding they made it pretty clear that “The admissions in different courses, Medical, Engineering and other streams which were completed after the judgment of the High Court dated 27.06.2019 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.

(Para 444, Sub 16)


With moving the case for judgement by Justice L. Nageshwara Rao, stated referring to the previous judgement that 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 and was also 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 by Justice Ashok Bhushan, I do not have anything further to add.


Justice Rao stated that “Article 342 A (2) provides that inclusion or exclusion from Central list of socially and educationally backward classes specified in a 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). b. The notification specifies socially and educationally backward classes. c. Inclusion or exclusion can be done only by law made by the Parliament. d. Save otherwise, the notification shall not be varied by any subsequent notification. e. The list notified is referred to as “Central list” (Page 432, Para 24)


Justice Hemant Gupta agreed 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. In the judgement passed by Justice Bhat, a lot of case laws were referred to this matter. With referring to the one of the case law it stated that “The salience of the issue under consideration is that equality 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 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 there is no right to claim a direction that reservations should be provided (the direction in that case being sought 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.(Page 450, Para 23)


After hearing out the arguments of both parties, Justice Bhat stated that “The interpretation suggested by the respondents, and by Ashok Bhushan, J., that the power of the states, which existed till the 102nd 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 SEBC in the Constitution, and provided for one notification under Article 342A issued by the President, which would “specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory”, and then, restricted the width of the term “deemed for purposes of this Constitution” by giving primacy to the term “Central List”. Such an interpretation restricts the specification of a community as backward, in relation to that State or Union territory, only for purposes of the Central List, i.e., for purposes of central government employment and Central Institutions. Such an interpretation with respect, is strained; it deprives plain and grammatical meaning to the provisions introduced by the 102nd Amendment, has the effect of tying the hands of the Central Government, and at the same time, grants the states unlimited latitude in the manner of inclusion of any class of citizens as backward.” (Page 539, Para 149)


It was noted by the court that learned counsel relied upon certain passages of the judgment of this Court in Kesavananda Bharti v. State of Kerala 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. 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 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 Rajasthan.


With regard to the above the court stated that “Two issues arise with respect to the validity of provisions inserted by the 102nd Amendment Act. The first is a facial challenge inasmuch as the petitioner urges that without following the procedure indicated in the proviso to Article 368(2), i.e. seeking approval or ratification of at least one half of the legislative assemblies of all the States, the amendment is void. In this regard what is noticeable is that direct amendments to any of the legislative entries in the three lists of the Seventh Schedule to the Constitution requires ratification. Thus, the insertion of substantive provisions that might impact future legislation by the State in an indirect or oblique manner would not necessarily fall afoul of the 136 1973 Supp. SCR 1 1371965 SCR (1) 933 124 Constitution for not complying with the procedure spelt out in the proviso to Article 368(2)”. (Para 183)


Concluding it was held that;

“On these two 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 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 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). (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 131 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 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 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 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). (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. (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 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 is issued under Article 142 of the Constitution of India. (6) Re Point No. 6: 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.”


The appeals and writ petitions were therefore disposed of in terms of the operative order of Bhushan, J. in para 444 of his Judgment.

In order to understand the issues handled out by the Supreme Court, refer to the guidelines mentioned by the court in its judgement.


Aaron Varughese

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