Judgment in Plain EnglishMaratha Reservation
On May 5th 2021, a five-judge Constitution Bench pronounced the judgment in the Maratha Reservation case (Jaishri Laxmanrao Patil v Union of India). The matter dealt with the Socially and Educationally Backward Classes Act, 2018 (‘SEBC Act’), which provided reservations for the Maratha community in higher education and public employment. The Court was hearing an appeal against the Bombay High Court’s judgment which approved the validity of the Act.
Four opinions were delivered. J Ashok Bhushan wrote for himself and J Abdul Nazeer. Justices Nageswara Rao, Hemant Gupta and Ravindra Bhat wrote for themselves. The Bench unanimously held that the 50% limit on reservations was good law, and need not be revisited. Further, the SEBC Act did not fall within the exceptions to this rule.
On the 102nd Constitutional Amendment Act, 2018 (‘102nd Amendment’), Justices Bhat, Rao and Gupta in the majority ruled that the Amendment did take away States’ powers to identify backward classes for reservations and other benefits. J Bhushan, with whom J Nazeer agreed, dissented. Taking a purposive approach, he held that the Amendment was not intended to deprive States of this power.
J Ashok Bhushan’s Opinion
Revisiting Indra Sawhney
J Bhushan held that there was a majority with an operative ‘ratio’ in Indra Sawhney. A majority is determined by looking at the greatest common measure of agreement. In the judgment, J Jeevan Reddy (who wrote for 4 judges) had held that there was a 50% limit that could be breached in ‘exceptional circumstances’. According to J Bhushan, J Sawant had agreed to a similar formulation of the rule. So, there was a majority of at least five judges among the nine-judge bench in Sawhney.
J Bhushan also reviewed cases where the rule was doubted. Most of these were expressed in cases prior to Sawhney. Since the judgment had already considered them, there was no reason to doubt it.
NM Thomas has held that Articles 15(4) and 16(4) which provide for reservations are not ‘exceptions’ to the general rule of equality. However, that does not mean the 50% limit does not apply. J Bhushan held that these Articles are ‘facets’ of Article 14. So, the principle of ‘reasonability’ would extend to them as well. It is this principle that requires the provision of reservations to be limited.
The rationale behind the limit is to ensure it is striking a reasonable balance. He said if the limit is exceeded, society would not be based on equality, but ‘caste rule’. It would lead to a slippery slope subject to political pressure for reservations. The goal of the Constitution is a ‘casteless society’. Other means of upliftment such as skill development and free education are needed.
Further, the Supreme Court’s pronouncements have the effect of law. So the 50% limit has the status of law. The 50% figure was not arbitrary. It is a translation of the phrase ‘minority of seats’ into numbers. This phrase was used by Ambedkar in the Constituent Assembly when he expressed that reservations should be limited to ensure equality of opportunity.
The 50% limit applies to reservations under both Articles 15(4) and 16(4). Various cases including MR Balaji and Sawhney have referenced that it could apply to both. He also stated that Directive Principles of State Policy such as Article 38 and 39 cannot override Fundamental Rights. Nevertheless, Indra Sawhney had already considered at least Article 38 in arriving at a decision.
The judgment in TMA Pai was held to be irrelevant. It had removed a 50% cap on reservations for minority students in minority institutions. However, that was in a completely different context, under Articles 29 and 30 of the Constitution.
The 77th and 81st Constitutional Amendments protected reservations in promotions and carrying reserved seats over to the following year. While these had the effect of overruling parts of Indra Sawhney, that did not make it a ground to revisit other parts of Sawhney. The 103rd Constitutional Amendment which introduced reservations for ‘economically weaker sections’ was challenged in a separate matter. So, J Bhushan chose not to comment on it.
J Bhushan concluded that none of the grounds put forth by Mukul Rohatgi and Kapil Sibal were compelling enough to revisit the 50% limit in Indra Sawhney.
On Maratha Reservations as an ‘Extraordinary Circumstance’
Following from the discussion on the majority in Indra Sawhney, J Bhushan held that ‘extraordinary circumstances’ that allowed a breach of the 50% limit were contained in paragraph 810 of the judgment. While the examples provided there were not exhaustive, it did provide alternative ‘tests’. One was for ‘far-flung’ areas, which was a geographic test. And the other was for communities outside the ‘main stream of national life’, which was a social test. For example, panchayats in Scheduled Areas had an exception.
The Gaikwad Commission had failed to justify ‘extraordinary circumstances’ on these grounds. It had made a mistaken assumption that the limit could be breached if there was ‘quantifiable data’. This was a misleading statement in SV Joshi that had misinterpreted the actual decision in M Nagraj. Just because a State had a large population of backward classes, the limit could not be breached.
J Bhushan then held that the Gaikwad Commission Report should be subject to constitutional scrutiny. This involved looking at the substance, not just the form. While the data could not be doubted, the question of whether the data supports the conclusions must be considered. However, there is no one standard of review for such reports, and it will depend on each case.
For example, the Report had indicated that 11.86% of Marathas were Grade A public employees. Marathas were close to 33% of the population according to it. Firstly, reservation cannot be granted because the share of employment is not proportional to the population. It is only when it is not adequate, and the community lacks a share of power. Second, the Report failed to analyse this in the context existing reservations. The employed Marathas were all part of the Open category competing for 48% of seats. This meant they were 33.23% of Open category candidates. Similar errors were made in analysing other parts of the report.
Reservations must be based on ‘contemporaneous data’. The Gaikwad Commission sought to disprove the old reports that had said Marathas were a forward caste. Instead, it should have done a comparative analysis to indicate what had changed since the earlier reports. There is a presumption, unless rebutted, that all communities and castes have marches towards advancement.
After Ram Singh, if a community is politically dominant, then that would be a factor indicating that they are forward. The Marathas are political dominant.
On States’ Powers to Identify Backward Classes
On this point, Justice Bhushan’s opinion forms the minority and is therefore not binding.
Reviewing the law on the use of ‘external aids’ to interpretation of statutes and the Constitution, J Bhushan held that it was now clear that parliamentary records can be used. It would help understand the historical background of the legislation, especially if the provision itself was ambiguous. A Minister of the Central Government had categorically stated that the 102nd Amendment would not affect States powers in the Rajya Sabha and Lok Sabha. The Rajya Sabha’s Select Committee Report had also taken note of this.
Interpretation cannot always be literal, it must follow principles of purposive interpretation. Although Article 342A was similar to Articles 341 and 342 which dealt with identifying SC/STs, they were not identical. They all required the President to notify a list which Parliament would then amend. However, unlike the other Articles, Article 342A used the phrase ‘Central List’, instead of just ‘list’. This phrase should be read in the context of the National Commission for Backward Classes Act, 1993 and the Maharashtra State Commission for Backward Classes Act, 2005. These were enacted after Indra Sawhney said States and the Centre are required to create Commissions to formulate lists for backward classes. The concept of two separate lists was clear: a Central List for Central services and a State List for State ones.
ITC Ltd v. APMC held that the Constitution must be limited in a way that does not whittle down States’ powers. In the State of NCT of Delhi v. Union of India, the Court had also held that it must consider ‘constitutional pragmatism’. The power to identify backward classes was contained in Articles 15 and 16. In the Constituent Assembly, Dr. Ambedkar had supported the view that States had this power. It cannot be taken away by inference. So, Article 342A did not seek to take States’ powers or affect State Lists. Instead, it only sought to ‘avoid any political factors’ in inclusion to the Central List.
However, J Bhushan held that Article 338B(9) now requires States to ‘consult’ the NCBC on all policy matters with regards to backward classes. This includes the provision of reservations. Such consultation must be ‘meaningful, effective and conscious’.
Besides the clarification on the questions of law, J Bhushan struck down s 4(1)(a) and (b) of the SEBC Act, insofar as it provided reservations to Marathas. However, those who had received the benefit of reservation until the stay in 2020 would continue to enjoy that benefit.
J Nageswara Rao’s Opinion
J Rao agreed with J Bhushan on the questions on the 50% limit and its exceptions. However, on the 102nd Amendment, he concurred with J Bhat. While fully subscribing to J Bhat’s reasoning, he provided some further reasons of his own.
He pointed out that judge cannot ‘innovate at pleasure’. The primary rule is to follow the text of the provision itself. Citing Aharon Barak’s ‘Purposive Interpretation’ he states that the language sets the limit for interpretation and acts as a source for the purpose, thus external aids cannot lead to an interpretation inconsistent with the text. He also cites case law that asks great caution to be exercised in relying on external aids for interpretation.
He states that the 102nd Amendment is clear and unambiguous, thus external aids such as parliamentary records are unnecessary. There is no apparent purpose to Article 342A besides what the text says. And the text only refers to one List which it calls the Central List. Article 366(26C) has defined socially and educationally backward classes in terms of Article 342A. So, the List then becomes the only exhaustive definition of backward classes throughout the Constitution. To read the phrase ‘Central List’ in any other way would be adding words in the provision.
J Hemant Gupta’s Opinion
J Gupta agreed with the reasons provided by both J Bhushan and J Bhat on the 50% limit and its exceptions.
However, on the 102nd Amendment, J Gupta disagreed with J Bhushan. He supported the reasons provided by J Bhat and J Rao.
J Ravindra Bhat’s Opinion
On Revisiting Indra Sawhney
J Bhat noted that seven out of the nine judges in Indra Sawhney had ‘unanimity in the conclusion’ with respect to the 50% rule: they all agreed that reservation could not exceed the 50% limit. Justices Ratnavel Pandian and PB Sawant, in minority, dissented: they noted that there could not be one general cut off for reservations. Since the majority of the bench had a ‘common agreement’ regarding the 50% ceiling limit, the argument of the petitioners that Indra Sawhney is incoherent or uncertain is invalid. Moreover, the argument that subsequent constitution bench cases including Devadasan, NM Thomas and Vasanth Kumar raise questions about the Indra Sawhney precedent is also not forceful: as Indra Sawhney was a larger nine-bench judgement.
He went on to add: “The idea of a definitive and objective principle, in the form of a 50% ceiling on limitation, emerges on an overall reading of Indra Sawhney.” The reservation limit rule and the “exceptional circumstances” justification for situations that exceed the 50% rule achieve ‘Goldilocks Solution’ (i.e. optimal balance between two extremes): it produces the “right balance” between state sponsored/initiated affirmative action and non-discrimination on the grounds of caste, gender, place of birth etc. On this issue, J Bhat concluded by noting that: “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.”
On Maratha Reservations as an ‘Extraordinary Circumstance’
On this issue, J Bhat agreed with the judgment and reasoning of Justice Ashok Bhushan.
On States’ Powers to Identify Backward Classes
The original Constitution of India, 1950 did not recognise reservation based on socio-educational status. Instead, it provided for caste as a ground for affirmative action in India. However, the only reference to social and educational backwardness was in Article 340: this enabled the President to set up a commission to investigate into condition of backwardness induced by socio-educational grounds.
Post Champakam Dorairajan, Article 15 was amended to allow special emancipatory provisions to be introduced based on social and educational backwardness. And a series of commissions were set up in different states that examined social and educational backwardness and suggested ameliorative measures.
Coming back to Article 342A J Bhat examined the Select Committee Report and other parliamentary reports during the Article’s drafting stage. He noted that express suggestions to include State Governments in the identification process of SEBCs were rejected. Moreover, the Committee drew parallels between Article 342A and Articles 341 and 342, which made provisions to identify SCs and STs. Even though the Report suggest that 102nd Amendment would not abrogate State’s power in any way; it reiterated that the State’s would be involved in practice in similar vein to Articles 341 and 342. J Bhat went on to analyse precedents around the issue of identification of SC and STs for the purpose of the Constitution. He noted that the Supreme Court had always interpreted the final power to identify and notify SC and STs with the President.
Therefore, extending the rule of interpretation to Article 342A, J Bhat concluded that only the President has the power to identify and notify socially and educationally backward classes. He added: “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 341 and 342, which had hitherto existed, ought to be replicated in relation to identification of SEBCs”.
On Whether Article 342A Violates the Basic Structure
J Bhat noted that Article 342A did not violate the principle of federalism. “A mere change brought about through amendments howsoever serious the impact, cannot per se be regarded as violative of the basic structure”, he noted. The threshold to prove a basic structure violation, in this case the principle of federalism is much higher. Only if the law completely 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” could it be considered as a basic structure violation. The shifting of identification of SEBCs from the State Government to the Centre does not pass this threshold.