Mhc senior advocate singaravelan 63 pages report regarding 69% reservation issue —Most of the Children Born in a Cattle Shed Of my Greeny Villages. Now, Succumbed Gradually To Industries and Factories And in the Street Corner of Noisy Towns! ************************************************* On Birth Even before naming, The Child, The Rituals Start in the Name of a Caste! ************************************************* Innocent they are! They Grow and Go to the School. There starts The Differentiation In the name of Caste after Their Parents’ name! *************************

CAUSE:-
Most of the Children
Born in a Cattle Shed
Of my Greeny Villages.
Now, Succumbed Gradually
To Industries and Factories
And in the
Street Corner of
Noisy Towns!
*************************************************
On Birth
Even before naming,
The Child,
The Rituals
Start in the
Name of a Caste!
*************************************************
Innocent they are!
They Grow and
Go to the School.
There starts
The Differentiation
In the name of
Caste after
Their Parents’ name!
*************************************************
Alas!
The life of
A Child
Starts There
In the name of Caste
And Continues
Till
It Breaths its Last-
Leaving the same.
To their
Children too!
*************************************************
In the tough
Competitive Race.
Their Caste
Acquires Importance
To Gain
Admission in the
Schools, Colleges and
Atlast in Government Workshops and
Workspots.
They call it
“Reservation.”
*************************************************
When the Life
Starts from
The Caste
Can it be Eradicated
Without doing so
At the Inception
Is a Million
Dollar Question
Driven me
To Write on “Reservation”.
************************************************* 
I. PRELUDE:-
1. From the day, the judgment dated 05-05-2021 of the Constitutional Bench of the Hon’ble Apex Court delivered in “Dr.Jaishri Laxmanarao Patel –vs- Chief Minister & ors.,” reported in (2021) SCCOnline SC 362 came to lime light the issue regarding reservation provided to various communities for the purpose of Arts.15(4) and 16(4) and the extent of reservation have become sensational and now become a subject matter of the heated debate. It has drawn the attention of so many as the issue of reservation is not only in our democratic country but even in the imperialistic countries from the ancient times has been playing an important role, and sometimes, even the rulers and the popular conquerors of the world have fallen prey to that issue throughout the world. In some places, the humans are being divided on the basis of the skin colour [Black and White], and in some places, on the basis of the financial or superior status attached to a particular community, they get divided.

2. Anyhow, the people in India even from ancient times were divided into 4 classes on the basis of the nature of their occupation and duties, (i.e.), the Brahmins, the Kshatriyas, the Vaisyas and the Sudras.

3. However the Constitutional Bench in Dr.Jayashree unanimously held that the law laid down in Indra Sawhneycase need not be revisited, I do start my report on the sensational and sensitive issue of reservation starting from Indra Sawhney.

4. Late Hon’ble Mr.Justic.S.Ratnavel Pandian as one of the senior-most Judges of the Hon’ble Apex Court found berth in the 9 Judges Bench judgment in popular “Mandal Commission Case” namely “Indra Sawhney -vs- Union of India & ors.,” reported in (1992) SCC (LAS) Supp 1 : (1992) Supp (3) SCC 217 has said about the reservation provided in our Constitution in the following words :
Per Pandian.J [Para-146] :
“The basic policy of reservation is to off-set the inequality and remove the manifest imbalance, the victims of which for bygone generations lag far behind and demand equality by special preferences and their strategies. Therefore, a comprehensive methodological approach encompassing jurisprudential, comparative, historical and anthropological conditions is necessary. Such considerations raise controversial issues transcending the routine legal exercise because certain social groups who are inherently unequal and who have fallen victims of societal discrimination require compensatory treatment. Needless that equality in fact or substantive equality involves the necessity of beneficial emphasise treatment in order to attain the result which establishes equilibrium between two sections placed unequally.”
II. RESERVATION –Vs- EQUALITY. –

5. It is necessary to recall the following observations of the Hon’ble Apex Court of 9 Judges in Indra Sawhney reported in (1992) SCC (L&S) Supp 1 : (1992) Supp (3) SCC 217, on the question of reservation:

(a) “Hon’ble JusticeB,P.Jeevan Reddy for Hon’ble Justice M.H.Kania,CJ and M.N.Venkatachaliah,A.M.Ahamadi,JJ and for himself in Indrasawhney Vs Union of India reported in 1992 SCC (L&S) Supp1 at p.336, para- 642 has expressed as follows :

(b) 642. The doctrine of equality has many facets. It is a dynamic and an evolving concept. Its main facets relevant to Indian society have been referred to in the preamble and the articles under the sub-heading “Right to equality” (Articles 14 to 18). In short, the goal is “equality of status and of opportunity.” Articles 14 to 18 must be understood not merely with reference to what they say but also in the light of the several articles in Part-IV (Directive Principles of State Policy).”Justice-Social, Economic and Political “,is the sum total of the aspirations incorporated in Part-IV.”

(c) Again at Para – 643 the Hon’ble Judges have observed as follows:-

“643. Article 14 enjoins upon the State not to deny to any person “equality before the law “or the equal protection of the laws,” but very few of both. Section 1 of the XIV Amendment to the US Constitution uses only the latter expression while the Austrian Constitution (1920), the Irish Constitution (1937) and the West German Constitution (1949) use the expression “equal before the law.”(Article 7 of the Universal Declaration of Human Rights, 1948, of course, declares that “all are equal before the law and are entitled without any discrimination to equal protection of the law.”)The content and sweep of these two concepts is not the same though there may be much in common .The content of the expression “equality before the law “is illustrated not only by Articles 15 to 18 but also by the several articles in Part IV, in particular, Articles 38,39,39A,41 and 46.Among others, the concept of equality before the law contemplates minimising the inequalities in income and eliminating the inequalities in status, facilities and opportunities not only amongst individuals but also amongst groups of people, securing adequate means of livelihood to its citizens and to promote with special care the educational and economic interests of the weaker sections of the people, including in particular the Scheduled Castes and Scheduled Tribes and to protect them from social injustice and all forms of exploitation. Indeed, in a society where equality of status and opportunity do not obtain and where there are glaring inequalities in incomes, there is no room for equality-either equality before law or equality in any other respect.”

(d) As what is said at para – 644 is relevant to the issue it is also reproduced below:-
“644. The significance attached by the Founding Fathers to the right to equality is evident not only from the fact that they employed both the expressions ‘equality before the law‘and‘equal protection of the laws’ in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18.Through Article 15 they declared in positive terms that the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. With a view to eradicate certain prevalent undesirable practices it was declared in clause (2) of Article 15 that no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and place of public entertainment, or to the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. At the same time, with a view to ameliorate the conditions of women and children a provision was made in clause (3) that nothing in the said article shall prevent the State from making any special provision for women and children.”
(e) “645.Inasmuch as public employment always gave a certain status and power-it has always been the repository of State power-besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment or by Article 16……”
Article 17 abolishes untouchability while 18 prohibits conferring of any titles (not representing military or academic distinction.). It also prohibits the citizens of this country from accepting any title from a foreign State.”
(f) Again at para – 647 the Hon’ble Apex Court has held as follows:-
“647. The other provisions of the Constitution having a bearing on 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 national life.”
(g) Para – 648 and para – 649 also are equally important and hence they are also reproduced below:-
“648.Clause (2). Of Article 38, added by the 44th Amendment Act says,
(T) State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
(h) “649.Article 46 contains a very significant directive to the State. It says:
“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 weaker sections of the people, and, in particular of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.””

(i) “650.It is evidently the weaker sections of the people “do include the “backward class of citizens contemplated by Article 16(4).”
From what is quoted above it is clear that the Hon’ble Apex Court in view of the usage of both the important phrases, namely,” equality before law “and “the equal protection of the laws unlike the constitution of other countries where either one alone is used as pointed out at para 643 of the judgment quoted above had framed 11 questions at para 682 and started answering each question one by one from para 734 under Part III of their judgment which finally after taking note of the judgment of other two groups of Hon’ble Judges were answered one by one at paras 859 and 860 of the Judgment the relevant portion of which is reproduced below:-

(j) 859.(1)(a) – It is not necessary that the provision under Article 16(4) should necessarily be made only by the Parliament/Legislature and such a provision can be made even by the Executive also.
Local bodies, Statutory Corporations and other instrumentalities fallen under Article 12 of the Constitution are also competent to make a provision for reservation. Paras – 735to737clb.An executive order making a provision under Article 16(4) is enforceable from the moment it is made and issued.
(2)(a)clause (4)” of Article 16 is not an exception to clause (1)(Paras741 and 742)
(2)(b)Article 16(4) is exhaustive of the subject of reservation in favour of backward class of citizens as explained at para – 743 of the judgment.”

III. MOOT QUESTIONS:-
Now, we have to deal with the following moot questions :
i. Whether the reservation can be provided by an Executive Order?
ii. Whether the state Government is empowered to provide for reservation?
iii. When does the Order take effect once it is passed?
iv. Whether the subjective satisfaction of the Government can be tested and questioned?
v. Whether Backward Class can be further be divided into More Backward Class?
vi. Whether the maximum extent of reservation should not exceed 50% is the Rule providing no exception?
vii. Whether the Constitutional Bench judgments rendered after Indra Sawhney have said anything contrary to Indra Sawhney or in addition to it and not in derogation of the same?
viii. Whether the amendment to Art.342 [342(A)] and 366 [366(26C)] with effect from 15.08.2018 has interfered within the power of the State Government and if so, to what extent?
ix. Whether the Act.45 of 1994 providing 69% is constitutionally valid?

(i) & (ii) Whether the reservation can be provided by way of an
Executive Order by the State Government and the Central
Government and other Statutory Authorities :

6. When the question as to whether by an Executive Order the reservation can be provided, the majority of the Hon’ble 9 Judges has held as follows:

“Per Kania, CJ. and Venkatachaliah, Ahmadi and Jeevan Reddy, JJ.
“Reading the definition of “State” in Article 12 and of “law” in Article provided not only by the Parliament/Legislature but also by the executive in respect of Central/State services and by the local bodies and “other authorities” contemplated by Article 12, in respect of their respective services. The expression “other authorities” includes all statutory authorities and other agencies and instrumentalities of the State Government/Central Government. Some of the local bodies and some of the statutory corporations like universities may have their own legislative wings. In such a situation, it would be unreasonable and inappropriate to insist that reservation in all these services should be provided by Parliament/Legislature. The situation and circumstances framed to suit the particular situations of each of these bodies may vary. The rule regarding reservation has to be framed to suit the particular situations.” [Paras – 736, 735 and 859].
7. “There is adequate safeguard against misuse the political executive of the power under Article 16(4) in the provision itself. Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction. The exercise is an objective one. Certain objective social and other criteria have to be satisfied before any group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power.” [Para – 737]

8. Per Pandian, J, [Concurring] :
‘Any provision’ under Article 16(4) is not necessarily to be made by the Parliament or Legislature. Such a provision for reservation the “services under State” under Art. 16(4) can also be made by an executive order.” [Paras – 170 to 172 and 243]
9. Per Kuldip Singh, J, [Concurring] :
“This question has been examined by Brother Judges and they have held that the reservations can be provided by the Parliament, State Legislatures, statutory rules as well as by way of Executive Instructions issued by the Central Government and the State Governments from time to time.” [Para – 392]
10. “The Executive Instructions can be issued only when there are no statutory provisions on the subject. Executive Instructions can also be issued to sup plement the statutory provisions when those provisions are silent on the subject of reservations. These propositions of law are unexceptionable and I reiterate the same. I, however, make it clear that any Executive Instruction issued under Article 16(4), 73 or 162 providing reservations, which goes contrary to statutory provisions or the rules under Article 309 or any other statutory rules, shall not be operative to the extent it is contrary to the statutory provisions/rules.” [Para – 392]

11. Per Sawant, J, [Concurring] :
“Under Art.16(4) the State has the power to make any provision which may be made either by an Act of legislature or by rule or regulation made under such Act or in the absence of both, by an executive order. Executive order is no less a law under Article 13(3) and the provisions of reservation under Article 16(4) being relatable to the recruitment and conditions of service under the State, they are also covered by Article 309 of the Constitution.” [Paras – 526 and 552]
“As regards the impugned OMs which are undoubtedly executive orders what is questioned is the method of exercising the power and not the absence of it. But the method should be left to the discretion and the policy of the Government and the exigencies of the situation. There is, therefore, no illegality attached to the impugned orders merely because the Government instead of enacting a statute for the purpose, has chosen to make the provisions by executive orders.”
12. Per Sahai,J :
“Reservation by executive order may not be invalid but since it was being made for the first time in services under the Union propriety demanded that it should have been laid before Parliament not only to lay down healthy convention but also to consider the change in social, economic and political conditions of the country as nearly ten years had elapsed from the date of submissions of the Report, a period considered sufficient for evaluation if the reservation may be continued or not.” ‘[Para – 636]
Thus, the majority has held that the reservation can be provided by an Executive Order of the State and Union Government and it is enforceable.

13. Then, for the question of power of both the Cental and state Governments to legislate on reservation, the Hon’ble Apex court has held as follows :

“(13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism – in the nature of a Commission for examining requests of inclusion and complaints of over-inclusion or non-inclusion in the list of OBCs and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefore. (Para 847)

(14) In view of the answers given by us herein and the directions issued herewith, it is not necessary to express any opinion on the correctness and adequacy of the exercise done by the Mandal Commission. It is equally unnecessary to send the matters back to the Constitution Bench of five Judges. (Paras 848 to 850)”

Then, at para-860, after the summary of their answers have given staright answers as mentioned below :
“860. For the sake of ready reference, we also record our answers to questions as framed by the counsel for the parties and set out in para 681.
“Our answers question-wise are———-
(4) The reservations contemplated in clause (4) of Article 16 should not exceed 50%. 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 the conditions peculiar to and characteristic of 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.
For applying this rule, the reservations should not exceed 50% of the appointments in a grade, cadre or service in any given year. Reservation can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.”
“861. (A) The Government of India, each of the State Governments and the Administrations of Union Territories shall, within four months from today, constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of over inclusion and under-inclusion in the lists of other backward classes of citizens. The advice tendered by such body shall ordinarily be binding upon the Government.

(B) Within four months from today the Government of India shall specify the bases, applying the relevant and requisite socio-economic criteria to exclude socially advanced persons/sections (‘creamy layer’) from ‘Other Backward Classes. The implementation of the impugned O.M. dated August 13, 1990 shall be subject to exclusion of such socially advanced persons (‘creamy layer’).

This direction shall not however apply to States where the reservations in favour of backward classes are already in operation. They can continue to operate them. Such States shall however evolve the said criteria within six months from today and apply the same to exclude the socially advanced persons/sections from the designated ‘Other Backward Classes’.”
14. The Hon’ble Apex Court has finally cautioned that all the questions regarding the Office Memorandum dealt with in Indra Sawhney Case can be questioned only before the Apex court in the following words :

“(C) It is clarified and directed that any and all objections to the criteria that may be evolved by the Government of India and the State Governments in pursuance of the direction contained in clause (B) of para 861 as well as to the classification among backward classes and equitable distribution of the benefits of reservations among them that may be made in terms of and as contemplated by clause (i) of the Office Memorandum dated September 25, 1991, as explained herein, shall be preferred only before this Court and not before or in any other High Court or other Court or Tribunal. Similarly, any petition or proceeding questioning the validity, operation or implementation of the two impugned Office Memorandums, on any grounds whatsoever, shall be filed or instituted only before this Court and not before any High Court or other Court or Tribunal.”
15. The other directions are as mentioned below :
“862. The Office Memorandum dated August 13, 1990 impugned in these writ petitions is accordingly held valid and enforceable subject to the exclusion of the socially advanced members/sections from the notified ‘Other Backward Classes’, as explained in para 861(B).

863. Clause (i) of the Office Memorandum dated September 25, 1991 requires to uphold its validity to be read, interpreted and understood as intending a distinction between backward and more backward classes on the basis of degrees of social backwardness and a rational and equitable distribution of the benefits of the reservations amongst them. To be valid, the said clause will have to be read, understood and implemented accordingly.

864. Clause (ii) of the Office Memorandum dated September 25, 1991 is held invalid and inoperative.

865. The writ petitions and transferred cases are disposed of in the light of the principles, directions, clarifications and orders contained in this Judgment.
866. No costs.”
(iii) When the Executive Order comes in to force ? :
Thus, the answer is that Reservation can be executive order by both the Governments, Central and State as held in State of Punjab –Vs- Davinder Singh also reported in (2020) 8 SCC 1.

16. Per Kania CJ and Venkatachaliah, Ahmadi and Jeevan Reddy, JJ :
“Once it is beld that the provision under Art. 16(4) can be made by the executive, it necessarily follows that such a provision is effective the moment it is made.” [Paras – 738 and 859]

17. Per Sawant, J :
“Such executive orders having been made under Article 73 of the Constitution have for their operation an equal efficacy as an Act of the Parliament or the rules made by the Article 309 of the Constitution.”
[Para – 527]
18. Thus, the Executive Order comes in to force, the moment it is issued.

19. (iv) Whether the subjective satisfaction of the State can be questioned :

20. For the question as to whether the subjective satisfaction of the State to provide reservation can be challenged in the Court on the ground of propriety, reasonableness and sufficiency, Justice Kania, C.J., Venkatachalaiah, Ahmadi and Jeevan Reddy, JJ, have held as follows :

“Not only should a class be a backward class for meriting reservations, it should also be inadequately represented in the services under the State. The language of clause (4) makes it clear that the question whether a backward class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State. Evident from the fact that the said requirement is preceded by the words “in the opinion of the State”. This opinion can be formed by the State on its own, i.e., on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is, there must be some material upon which the opinion is formed. Indeed, in this matter the court should show due deference to the opinion of the State, which in the present context means the executive. The executive is supposed to know the existing conditions in the society, drawn as it is from among the representatives of the people in Parliament/Legislature. 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 Chemicals v. Company Law Board. 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 judgment of the State/executive.” [Paras – 798 and 859]

21. Pandian,J, concurred with the above view in the following words at Para-174 as follows :
Per Pandian, J [Concurring] :
“(a) The expression ‘in the opinion of the State’ would mean the formation of opinion by the State which is purely a subjective process. It cannot be challenged in a Court on the grounds of propriety, reasonableness and sufficiency though such an opinion is required to be formed on the subjective satisfaction of the Government whether the identified backward class of citizens’ are adequately represented or not in the Services under the State. But for drawing such g requisite satisfaction, the existence of circumstances relevant to the formation of opinion is a sine qua non. If the opinion suffers from the vice of non application of mind or formulation of collateral grounds or beyond the scope of Statute, or irrelevant and extraneous material then that opinion is challengeable.” [Para – 174]

22. “(b) The action of the Government in making provision for the reservation of appointments or posts in favour of any ‘backward class of citizens’ is a matter of policy of the Government. What is best for the backward class’ and in what manner the policy should be formulated and implemented bearing in mind the object to be achieved such reservation is matter for decision exclusively within the province of the Government and such matters do not ordinarily attract the power of judicial review or judicial interference except on the grounds which are well settled by a catena of decisions of the Supreme Court.” [Paras – 176 and 243]

23. (v) Whether the Backward Class can be further divided into more backward classes :

For the question as to whether the backward classes can be further divided into backward and more backward categories, the Hon’ble Judges Kania,C.J., and Venkatachalaiah, Ahmadi and Jeevan Reddy, JJ, have held as follows :

24. “802. There is no constitutional or legal bar to a State categorizing the backward classes as backward and more backward, though it is not being suggested that it ought to be done. Where there is a situation that amongst the OBCs a class far less backward than another may take all the reserved posts leaving none for the other, the State may think it advisable to make a categorization even among the OBCs so as to ensure that the more backward among the backward classes obtain the benefits intended for them. Where to draw the line and how to effect the sub-classification is, however, a matter for the Commission and the State-among backward classes, there can be a sub-classification on a reasonable basis.”
[Paras – 802, 859(5) and 860(5)]

25. “The logic by which separate provision has been made for the SCs and STs, who also fall under the category of backward classes under article 16(4), also applies to the categorization between backward and more backward.”
[Para – 803]
26. “So it is not impermissible for the State to categorise backward classos into backward and more backward on the basis of their relative social backwardness.”
[Para – 843]
27. Per Sawant,J :
“Whether the backward classes can be classified onto Backward and More Backward, would depend upon the facts of each case. So long as both backward and more backward classes are not only comparatively nut substantially backward than the advanced classes, and further, between themselves, there is a substantial difference in backwardness, not only it is advisable but also imperative to make the sub-classification if all the backward classes are to gain equitable benefit of the special provisions under the Constitution. However, for each of them a special quota has to be prescribed. If it is not done, as in the present case, and the reserved posts are first offered to the more backward and only the remaining to the backward or less backward, the more backward may take away all the posts leaving the backward with no posts. The backward will neither get his post in the reserved quota nor in the general category for want of capacity to compete with the forward.”
[Paras – 524 and 525]
(vi) Whether reservation can be provided in excess of 50% :
28. “Per Kania, CJ and Venkatachaliah, Ahmadi and Jeevan Reddy, JJ:
“(a) The reservations contemplated in clause (4) of Article 16 should not exceed 50 per cent.” [Paras – 809 and 859]
29. “Balaji rejected the argument that in the absence of a limitation contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation. It observed that a provision under Article 15(4) being a “special provision” must be within reasonable limits.” [Para – 804]

30. “Article 16(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. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the 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 as explained below.” [Para – 807]

31. “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. 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 14.” [Para – 808]

32. “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 Tribes, it comes to a total of 49.5%.”
[Para – 807]
33. “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 character. istic 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.”
[Paras – 810 and 859]

34. “It may be noted that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.”
[Para – 811]
35. “Besides the rule of 50% applies only to reservations in favour of backward classes made under Article 16(4) as all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as vertical reservations’ and ‘horizontal reservations’. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called interlocking reservations. The persons selected against this quota will be placed in the appropriate category, if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.”
[Para – 812]

36. “(b) It is, however, made clear that the rule of 50% shall be applicable only to reservations proper, they shall not be indeed cannot be applicable to exemptions, concessions or relaxations, if any, provided to ‘Backward Class of Citizens’ under Article 16(4).”

[Para – 813]

37. (c) The rule of 50% should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be.” [Para – 859(6)]

38. Per Thommen, J – [Concurring] :
“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 must at all times remain well below 50% of the total number of new posts.” [Para – 323(8)]

39. “Any excessive reservation or any unnecessarily prolonged reservation will result in invidious discrimination. Every reservation must be made with a view to its early termination on the successful accomplishment of its object.”. [Para – 229]

40. Per Kuldip Singh, J – [Concurring] :
“I have carefully read the reasoning and conclusions reached by R.M.Sahai,J, on this issue. Agreeing with him I hold :
(i) That the reservations under Article 16(4) must remain below 50% and under no circumstance be permitted to go beyond 50%. Any reservation beyond 50% is constitutionally invalid.

(ii) It is for the State to adopt the methodology of providing reservations below 50%. The State may provide the said reservation in respect of the substantive vacancies arising in a year or in the cadre or service. It would be permissible to carry forward the reserve vacancies of one year to the next year. It is reiterated that the vacancies reserved in a year including those which are carried forward shall not exceed 50%.

(iii) No reservation of any kind can be made for any class or category whether backward or non-backward under Art.16(1)” [Para – 384]

41. Per Sawant,J – [Concurring] :
“Even on the application of the Rule 50%, it was not necessary to strike down the “Carry-Forward Rule” itself. All that was necessary was to confine the Carry-Forward vacancies for the year in question to 50%.”
[Para – 501]
“Ordinarily, the reservations kept both under Articles 16(1) & 16(4) together should not exceed 50% of the appointments in a grade, cadre or service in any particular year. It is only for extra-ordinary reasons that the percentage may be exceeded. However, every excess over 50% will have to be justified on valid grounds will have to be specifically made out.”
42. Per Sahai,J – [Concurring at Para-619] :
“Since this Court has consistently held that the reservation under Articles 15(4) & 16(4) should not exceed 50 per cent and the States and the Union have by and large accepted this as correct it should be held as constitutional prohibition and any reservation beyond 50 per cent would liable to be struck down. Reservation under Article 16(4) should in no case exceed 50 per cent.”
Again at Para-635(4),
“Thus reservation being an extreme form of protective measure or affirmative action it should be confined to minority of seats. Even though the Constitution does not lay down any specific bar but the constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50 per cent.”
43. Per Pandian,J [Different] from Sahai,J, held at Paras-178 & 179 as follows :
“I am unable to agree with the proposition fixing the reservation for SEBCs at 50% as the maximum limit. The observation in Balaji that reservation under Article 16(4) should not be beyond 50% is only an obiter dicta since that question did not at all arise for consideration in that case.”
44. At Paras-183 & 189 against Pandian, J, observed as follows :
“As to what extent the proportion of reservation will be so excessive as to render it bad must depend upon adequacy of representation in a given case. Therefore, the decisions fixing the percentage of reservation only up to the maximum of 50% are unsustainable. The percentage of reservation at the maximum of 50% is neither based on scientific data nor on any established and agreed formula. In fact, Article 16(4) itself does not limit the power of the Government in making the reservation to any maximum percentage; but it depends upon the quantum of adequate representation required in the Services. Hence no maximum percentage of reservation can be justifiably fixed under Articles 15(4) and/or 16(4) of the Constitution.”

45. Again at Para-243(9), Pandian,J, has categorically held as follows :
“Hence no maximum ceiling of reservation can be fixed under Article 16(4) of the Constitution for reservation of appointments 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.”
46. Thus, with the majority of the 4 Hon’ble Judges other 3 Hon’ble Judges, Pandian,J, Sawant, Jand Sahai, J, are also of the view that 50% is the rule but there are exceptions in the form of extra-ordinary and exceptional reasons to go beyond 50% of total reservation.

47. The above view was quoted and accepted by the recent Hon’ble Constitutional Bench Judgment of the Apex court in Dr.Jaishri Laxmanrao Patil’s Case reported in (2021) SCCOnline SC 362 at para-450 by the Hon’ble 2 Judges of the Constitutional Bench approved by all other 3 Hon’ble Judges of the Constitutional Bench also at paras-478, 479, 480 & 188.

48. All the Hon’ble Judges have further held that the law laid down in Indra Sawhney Case need not be revisited.

49. Only in respect of other points as to whether the State Government have got power to touch the Order passed by the President of India declaring certain communities as Scheduled Tribes and Scheduled Castes. But, on the issue of 50% Rule with an exception to exceed 50%, there is an unanimity among the 5 Hon’ble Judges following the majority view of 9 Hon’ble Judges in Indra Sawhney Case.

50. In Indra Sawhney Case, the questions are answered and summarized after a thorough discussion supported by reasons as mentioned below :

“804. In Balaji, a Constitution Bench of this Court rejected the argument that in the absence of a limitation contained in Article 15(4), no limitation can be prescribed by the Court on the extent of reservation. It observed that a provision under Article 15(4) being a “special provision” must be within reasonable limits. It may be appropriate to quote the relevant holding from the judgment: (SCR pp. 467, 470)

“When Article 15(4) refers to the special provision for the advancement of certain classes or Scheduled Castes and Scheduled Tribes, it must not be ignored that the provision which is authorised to be made is a special provision; it is not a provision which is exclusive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Article 15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Article 15(4). It would be extremely unreasonable to assume that in enacting Article 15(4) the Parliament intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was con cerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored …. 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 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, 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 the relevant prevailing circumstances in each case.”

In Devadasan this rule of 50% was applied to a case arising under Article 16(4) and on that basis the carry-forward rule was struck down. In d Thomas however, the correctness of this principle was seriously ques tioned. Fazal Ali, J observed: (SCC p. 387, para 191)

“This means that the reservation should be within the 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 Constitution it is manifest that the State cannot be allowed to indulge in excessive reservation so as to defeat the policy contained in Article f 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 adhered to in all cases. Decided cases of this Court have no doubt laid down that the percentage of reservation should not exceed 50%. 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 constitute 80% of the population and the Government, in order to give them proper representation, reserves 80% 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 to this provision is to take steps to make inadequate representation adequate.”

Krishna Iyer, J agreed with the view taken by Fazal Ali, J in the following words: (SCC p. 370, para 143)

“I agree with my learned brother Fazal Ali, J in the view that the arithmetical limit of 50% 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 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.”

Mathew, J I did not specifically deal with this aspect but from the principles of proportional equality’ and ‘equality of results’ espoused by the learned Judge, it is argued that he did not accept the 50% rule. Beg, J also did not refer to this rule but the following sentence occurs in his judgment at pages 962 and 963: (SCC p. 354, para 99)

“If a reservation of posts under Article 16(4) for employees of backward classes could include complete reservation of higher posts to which they could be promoted, about which there could be no doubt now, I fail to see why it cannot be partial or for a part of the duration of service and hedged round with the condition that a temporary promotion would operate as a complete and confirmed promotion only if the temporary promotee satisfies some tests within a given time.”

Ray, CJ, did not dispute the correctness of the 50% rule but at the same time he pointed out that this percentage should be applied to the entire service as a whole.

805. After the decision in Thomas controversy arose whether the 50% rule enunciated in Balaji” stands overruled by Thomas or does it continue to be valid. In Vasanth Kumar two learned Judges came to precisely opposite conch sions on this question. Chinnappa Reddy, J held that Thomas has the effect of undoing the 50% rule in Balaji whereas Venkataramiah, J held that it does not.

806. It is argued before us that the observations on the said question in Thomas were obiter and do not constitute a decision so as to have the effect of overruling Balaji”. Reliance is also placed upon the speech h of Dr Ambedkar in the Constituent Assembly, where he said that reser vation must be confined to a minority of seats (see para 693). It is also pointed out that Krishna Iyer, J who agreed with Fazal Ali, J in Thomas on this aspect, came back to, and affirmed, the 50% rule in Karamchari Sangh” (at pp. 241 and 242: SCC pp. 296, para 88). On the other hand, it a is argued for the respondents that when the population of the other backward classes is more than 50% of the total population, the reser vation in their favour (excluding Scheduled Castes and Scheduled Tribes) can also be 50%.

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 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 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 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 con nection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in V. Narayana Rao v. State of A.P., striking down the enhancement of reservation from 25% to 44% for OBCs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.

808. It needs no emphasis to say that the principal aim of Articles 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 re-statements of the 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 “confined to ba minority of seats” (See his speech in Constituent Assembly, set out in para 693). No other meraber 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 that concept.

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 great diversity of this country and the people. It might happen that in farflung and remote, areas the population inhabiting those areas might, on account of their being out 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.

811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may f well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.

812. We are also of the opinion that this rule of 50% applies only to 9 reservations in favour of backward classes made under Article 16(4). A little clarification is in orcer at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as vertical reservations’ and ‘horizontal reservations. The reservations in favour of Scheduled Castes, h Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category, if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.

813. It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be indeed cannot be applicable to exemptions, concessions or relaxations, if any, provided to ‘Backward Class of Citizens’ under Article 16(4).”

51. Then, the Hon’ble Judges have given summarization to the questions framed in Indra Sawhney Case as follows :

“ ……..859. We may summarise our answers to the various questions dealt with and answered herein above:
(6) (a) and (b) The reservations contemplated in clause (4) of Article 16 should not exceed 50%. 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 the conditions peculiar to end characteristic of 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. (Paras 804 to 813)

(d) Devadasan” was wrongly decided and is accordingly over ruled to the extent it is inconsistent with this judgment. (Paras 815 to 818).”

52. Then, on the question of providing 10% of reservation provided for the other economically backward class/sections, the Bench has answered as follows :
“…………. (10) The distinction made in the impugned Office Memorandum dated September 25, 1991 between poorer sections’ and others among the backward classes is not invalid, if the classification is understood and operated as based upon relative backwardness among the several classes identified as Other Backward Classes, as explained in paras 843-844 of this Judgment. (Para 843-844)

(11) The reservation of 10% of the posts in favour of ‘other eco nomically backward sections of the people who are not covered by any of the existing schemes of the reservation’ made in the impugned Office Memorandum dated September 25, 1991 is constitutionally invalid and is accordingly struck down. (Para 845)”

In view of the above categorical conclusions and answers drawn by the Hon’ble Apex Court of 9 Judges in Indra Sawhney Case followed in all the subsequent cases dealt with by the Constitutional Bench of the Hon’ble Apex court, the State Government also is empowered to constitute a permanent body to work out on reservation and Provide for reservation even more under extraordinary situations.

(vii & viii) The impact Constitutional Bench judgments rendered after Indra Sawhney :
(a) Whether they are to be read in addition or derogation?

(b) Whether the Constitution Amendments to Article 342 (342A) and Article 226 (226 (26C)) with effect from 15.08.2018 has taken away the power of the State?

53. a) The Constitution Bench of 5 Judges of the Honorable Apex Court E.V.Chinnaiah –vs- The State of Andhra Pradesh reported in (2005) 1 SCC 394, the Hon’ble Justice N.Santosh Hedge for himself, Hon’ble Judge S.N.Vairava and Hon’ble Judge B.P.Singh, JJ, has held as follows in respect of the challenge to the validity of the Andhra Pradesh Scheduled Castes (Rationalization of Reservations) Act, 2000, (A.P.Act 20 of 2000) :

“43. The very fact that the members of the Scheduled Castes are most backward amongst the backward classes and the impugned legislation having already proceeded on the basis that they are not adequately represented both in terms of clause (4) of Article 15 and clause (4) of Article 16 of the Constitution, a further classification by way of micro-classification is not permissible. Such classification of the members of different classes of people based on their respective castes would also be violative of the doctrine of reasonableness. Article 341 provides that exclusion even of a part or a group of castes from the Presidential List can be done only by Parliament. The logical corollary thereof would be that the State Legislatures are forbidden from doing that. A uniform yardstick must be adopted for giving benefits to the members of the Scheduled Castes for the purpose of the Constitution. The impugned legislation being contrary to the above constitutional scheme cannot, therefore, be sustained.

44. For the reasons stated above, we are of the considered opinion that the impugned legislation apart from being beyond the legislative competence of the State is also violative of Article 14 of the Constitution and hence is liable to be declared as ultra vires the Constitution.

45. The appeals are allowed, the impugned Act is declared as ultra vires the Constitution.”

54. The Hon’ble Judge H.K.Sema,J, [concurring] has held at para-50 as follows :
“H.K. SEMA, J. (concurring)- I had the privilege of going through the erudite judgment prepared by my learned Brother Hegde, J. and I respectfully agree with him. However, having regard to the substantial question of law involving as to the interpretation of the Constitution, I thought of putting a few lines of my own on one aspect of the matter.

50. Thus, the pious object for issuing the Presidential Notification is to afford them special protection having regard to social and educational backwardness. The Presidential Notification under Article 341 of the Constitution as well as the benefits of reservation of appointments or posts which in the opinion of the State, is not adequately represented in the services under the State, is afforded to a class of persons specified in the Presidential Notification under Article 341 of the Constitution. The backward class of citizens enshrined in Article 16(4) of the Constitution includes Scheduled Castes and Scheduled Tribes. The whole basis of reservation is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes as a class of persons who have been suffering since a considerable length of time due to social and educational backwardness. The protection and reservation is afforded to a homogeneous group. Further classification and/or regrouping the homogeneous groups by the State Legislature would tinker with the Presidential Notification issued under Article 341, which is constitutionally impermissible. By the impugned legislation, the State has sought to regroup the homogeneous group specified in the Presidential Notification for the purposes of reservation and appointments. It would tantamount to discrimination in reverse and would attract the wrath of Article 14 of the Constitution. It is a trite law that justice must be equitable. Justice to one group at the cost of injustice to other group is another way of perpetuating injustice.”

55. The Hon’ble Judge S.B.Sinha [concurring] has held at para-113 as follows :
“S.B. SINHA, J. (concurring) The vires of a State legislation of Andhra Pradesh known as the Andhra Pradesh Scheduled Castes (Rationalisation of Reservations) Act, 2000 (Act 20 of 2000) (for short “the Act”) purported to have been made in terms of Entry 41 List II and Entries 23 and 25 List III of the Seventh Schedule of the Constitution was questioned before the High Court. Its validity has been upheld by a five-Judge Bench of the said Court, correctness whereof is in question before us.

113. The power of the State Legislature to decide as regards grant of benefit of reservation in jobs or in educational institutions to the backward classes is not in dispute. It is furthermore not in dispute that if such a decision is made the State can also lay down a legislative policy as regards extent of reservation to be made for different members of the backward classes including Scheduled Castes. But it cannot take away the said benefit on the premise that one or the other group amongst the members of the Scheduled Castes has advanced and, thus, is not entitled to the entire benefit of reservation. The impugned legislation, thus, must be held to be unconstitutional.”

From the above judgment of the Constitutional Bench, it is clear that it was held in E.V.Chinnaiah that the State Government is not competent to touch the list of Scheduled Castes and Scheduled Tribes notified by the President and on a perusal of the detailed conclusion and answers reproduced in their judgement while dealing with Indra Sawhney’s Case, one can immediately say that the judgment in E.V.Chinnaiah’s Case has to be necessarily re-visited.

b) (2006) 8 SCC 212 – Nagaraj Case : Dated 19.10.2006.

56. Then came Nagaraj Case reported in (2006) 8 SCC 212 dealing with the validity of the Constitutional provisions 16(4A) and 16(4B) inserted for the benefit of the Scheduled Castes and Tribes has upheld the validity of both the provisions along with other consequential constitutional provisions subject to the examination on adequate representation, 50% ceiling limit and creamy layer as follows,
“121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion). the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwals.

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 are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

123. However, in this case, as stated above, the main issue 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 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 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.

124. Subject to the above, we uphold the constitutional validity of the Constitution (Seventy-seventh Amendment) Act, 1995; the Constitution (Eighty-first Amendment) Act, 2000; the Constitution (Eighty-second Amendment) Act, 2000 and the Constitution (Eighty-fifth Amendment) Act. 2001.

125. We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate Bench in accordance with law laid down by us in the present case.”

c) (2020) 8 SCC 1 – Davinder Singh Case : Dated 27.08.2020

57. Then, the Constitutional bench of five judges of the Hon’ble Apex Court has held in State of Punjab –vs- Davinder Singh, reported in (2020) 8 SCC 1 upheld the state’s power of providing reservation by exclusion or inclusion and held that the judgement in E.V.Chinnaiah’s case has to be revisited as follows:
“55. In the federal structure, the State, as well as Parliament, have a constitutional directive for the upliftment of Scheduled Castes, Scheduled Tribes, and socially and (sic educationally) backward classes. Only inclusion or exclusion in the Presidential notification is by Parliament. The State Government has the right to provide reservation in the fields of employment and education. There is no constitutional bar to take further affirmative action as taken by the State Government in the cases to achieve the goal. By allotting a specific percentage out of reserved seats and to provide preferential treatment to a particular class, cannot be said to be violative of the List under Articles 341, 342 and 342-A as no enlisted caste is denied the benefit of reservation.

56. The “inadequate representation” is the fulcrum of the provisions of Article 16(4). In our opinion, it would be open to the State to provide on a rational basis the preferential treatment by fixing reasonable quota out of reserved seats to ensure adequate representation in services. Reservation is a very effective tool for emancipation of the oppressed class. The benefit by and large is not percolating down to the neediest and poorest of the poor.

57. The interpretation of Articles 14, 15, 16, 338, 341, 342 and 342-A is a matter of immense public importance, and correct interpretation of binding precedents in Indra Sawhney and other decisions. Though we have full respect for the principle of stare decisis, at the same time, the Court cannot be a silent spectator and shut eyes to stark realities. The constitutional goal of social transformation cannot be achieved without taking into account changing social realities.

58. We endorse the opinion of a Bench of 3 Judges that E.V. Chinnaiah is required to be revisited by a larger Bench; more so, in view of further development and the amendment of the Constitution, which have taken place. We cannot revisit E.V. Chinnaiah? being Bench of coordinate strength. We request the Hon’ble Chief Justice to place the matters before a Bench comprising of 7 Judges or more as considered appropriate.”

d) (2021) SCCOnline 362 dated 05-05-2021 : Dr.Jaishree Laxmanrao Patil Case :
58. Then, the Constitutional Bench of 5 Judges of the Hon’ble Apex Court has held in Dr.Jaishree Laxmanrao Patil –vs- TheChief Minister & ors., reported in (2021) SCC Online SC 362 that the State’s competent to provide reservation cannot be interpreted to mean to touch the President’s Notification of listing the Scheduled Castes and Scheduled Tribes but to be read in accordance with the Constitutional Amendment to Article 342 (342A) and Article 366(26C) of the Constitution of India as follows:-

“(15) Conclusions: a) by Hon’ble Mr.Justice Ashock Bhusan J and S. Abdul Nazeer:-
450. 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:
(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 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 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.

(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.
(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.
(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 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 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.
(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 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.
(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 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.
(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.
(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 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 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.
(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.
(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.
(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 by the Society of today, is to attain social status and play a role in 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 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.
(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 that what is required by the State for providing reservation under Article 16(4) is not proportionate representation but adequate representation.
(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 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, we are of the view 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.
(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.
(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, 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.
(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 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.
(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.
(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) 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.
(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 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 102 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.
(32) The Constitution 102 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.

59. b) Hon’ble Mr.Justice Nageswarao J.

478. I find it difficult to agree with the submissions made on behalf 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 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. 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 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 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 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.

479. A conspectus of the above discussion would be that only those backward classes included in the public notification under Article 342 A shall be socially and educationally backward classes for the purposes of the Constitution.

60. c) Hon’ble Mr. Justice 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 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.

61. d) Hon’ble Mr. Justice S. RAVINDRA BHAT, J.:— 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 common judgment of the Bombay High Court , 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 community as a “Backward Class” for the purposes of the Constitution, and, by an enactment (hereafter referred to as “the SEBC Act”) defining who could benefit from, and the extent of reservations that could be made in various state established facilities and educational institutions, and in the public services of the State of Maharashtra.
682. 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 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 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 102 Amendment is also not contrary to or violative of proviso to Article 368(2) of the Constitution of India. As a result, it is held that the writ petition is without merit; it is dismissed.
62. Conclusions:-
188. In view of the above discussion, my conclusions are as follows:
(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. 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 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 Constitution Bench in Indra Sawhney’s case. I agree with the reasoning and 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 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 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 interrelated points of reference, my conclusions are as follows:
(i) By introduction of Articles 366(26C) and 342A through the 102 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 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.
683. The reference is answered in the above terms. The appeals and writ petitions are therefore, disposed of in terms of the operative order of Bhushan, J. in para 444 of his Judgment.”

63. FINDINGS:-

(i) In view of the categorical and unequivocal answers given by the Hon’ble 9 Judges Bench Judgment of Indra Sawhney dated 16.11.1992 reported in 1992 SCC (L&S) Supp 1 at para 859(1) the State Government is also empowered to provide for reservation followed by Hon’ble 5 Judges Bench in State of Punjab –Vs- Davinder Singh dated 27.08.2020 reported in (2020) 8 SCC P1 but within the purview of Article 342A and 366(26C) of the Constitution of India as clarified in Dr.Jayashree by the majority of 3.

It is to be noted that the Constitution Bench Judgment of 5 Hon’ble Judges in Dr.Jayashree case dated 05.05.2021 IN 2021 SCC Online SC 362 unanimously held that Indra Sawhney case need not be revisited and it has laid down a binding precedent.

(ii) The reservation can be provided even by an excecutive order as laid down at para 859(1) of Indra Sawhney followed in Dr. Jayashree dated 05.05.2021.

(iii) The Government order if any takes its effect from the moment it is issued as laid down in Indra Sawhney reported in 1992 Supp (3) SCC 217.

(iv) The Backward Class can be further divided into more backward class with special quota for that as unequal cannot be treated as equal as laid down in Indra Sawhney reporte in 1992 Supp (3) SCC 217.

(v) The outer ceiling limits for reservation is 50% and however under extraordinary circumstances the same can be exceeded as laid down in Indra Sawhney 1992 Supp (3) SCC 217 paras 859(a) and (b).

The same was followed in Dr. Jayashree case in 2021 SCC Online 362 by the Constitutional Bench Judgment of 5 Hon’ble Judges.

(vi) The subjective satisfaction of the Government to provide reservation can be tested and challenged with same limitations and guidelines followed by the Courts while dealing that question for other enactments an laid down in Indra Sawhney which was followed and upheld by the Constitutional Bench Judgment of 5 Hon’ble Judges in Dr.Jayashree case.

(vii) In view of the categorical findings of the Hon’ble 3 Judges of the Hon’ble 5 Judges Bench Judgment in Dr.Jayashree dated 05.05.2021 the power of the State Government is limited in scope and it has to be tested in the light of recent Constitutional Amendments to Article 342 (342A) and Article 366 (2bc) which have come into force with even from. But the other Constitutional Bench in Davinder Singh dated 27.08.2020 reported in (2020) 8 SCC P1 has not imposed any limitation on State’s power to enact by holding that the State alone is the best Judge to decide to deal with the reservation in the State.

(viii) As the above amendments to Articles 342 and 366(26C) found place in the Constitution only with effect from 10.05.2018 it was not the subject matter of any discussion in Indra Sawhney judgment in 1992 SCC (L&S) Supp 1 and hence Dr. Jayashree case in 2021 SCC Online SC P 362 and Davinder Singh (2020) 8 SCC P1 have to be read in addition to Dr. Indra Sawhney and not in derogation of the same. The authoritative judgment of the Constitutional Bench Judgment in Davinder Singh at paras 52 to 57 supports the States’s power and holds the field even as on date.

(ix) In view of the enforceability of the Amendment to Articles 366 and 342 with effect from 10.05.2018 and in view of the categorical findings in Indra Sawhney case followed in the recent Constitution Bench Judgment in Davinder Singh dated 27.08.2020 reported in (2020) 8 SCC P1and Dr.Jayashree dated 05.05.2021 reported in 2021 SCC Online SC 362, the reservation need not be restricted to 50% alone and the State Government is empowered to deal with reservation as laid down in Dr. Jayashree case by all the 5 Hon’ble Judges dated 05.05.2021.

(x) Whether Tamilnadu Act 45/1994 provides for 69% reservation is constitutionally valid?

In view of the answer given to question number (vi) that though 50% ceiling limit is outer ceiling limit as held by the Courts but not by the Constitution can be exceeded and extended in extraordinary situations inherent in the great diversity of this country and the people as laid down by the Larger Bench of Hon’ble 9 Judges in Indra Sawhney dated 16.11.1992 which was followed in Dr. Jayashree case dated 05.05.2021 reported in 2021 SCC Online SC 362 by the Hon’ble 5 Judges Bench holding that the judgment in Indra Sawhney has stood the test o f time and it need not be referred to the Larger Bench.

Moreover, the Constitutional Amendments to Articles 342 and 366 as dealt with under question s (vii) and (viii) above came into force only with effect from 10.05.2018 and 69% reservation was provided by the State of Tamilnadu on complete analysation of all factors even before that as cautioned in Indra Sawhney case and it was inserted even in IX Schedule as subject No.257A, by the Constitution (Seventy-Sixth Amendment) Act, 1994 with effect from 31.08.1994. It is necessary to go through the Objects and Reasons for that Constitutional Amendment.

64. Paras 1 to 9 of the Statement of Objects and Reasons apprehended to the Constitution (Eighty-Fifth Amendment) Bill, 1994 which was enacted as the Constitution (Seventy-Sixth Amendment) Act, 1994 are relevant to be reproduced and accordingly they are reproduced below:-

“STATEMENT OF OBJECTS AND REASONS”
1. The policy of reservation of seats in Educational Institutions and reservation of appointments of posts in public services for Backward Classes, Scheduled Castes and Scheduled Tribes has had a long history in Tamil Nadu dating back to the year 1921. The extent of reservation has been increased by the State Government from time to time, consistent with the needs of the majority of the people and it has now reached the level of 69 per cent (18 % Scheduled Castes, 1% Scheduled Tribes and 50% Other Backward Classes).

2. The Supreme Court delivered its judgment in Indira Sawhney and others –Vs- Union of India and Others (AIR 1993 SC 477) on 16th November, 1992, holding that the total reservations under article 16(4) should not exceed 50%.

3. The issue of admission to educational institutions for the academic year 1993-94 came up before the High Court of Madras in a writ petition. The High Court of Madras held that the Tamil Nadu Government could continue its reservation policy as hitherto followed during that academic year and that the quantum of reservation should be brought down to 50% during the academic year 1994-95. The Government of Tamil Nadu had filed a Special Leave Petition against the High Court of Madras in order that the present reservation policy of the State Government should be reaffirmed so as to ensure to continue advancement of the Backward Classes. However, the Supreme Court of India passed an interim order reiterating that the reservation should not exceed 50 per cent in the matter of admission to educational institutions.

4. In the special Session of Tamil Nadu Legislative Assembly held on 9th November, 1993, it had been unanimously resolved to call upon the Central Government to take steps immediately to bring a suitable amendment to the Constitution of India as to enable the Government of Tamil Nadu to continue its policy of 69 per cent reservation in Government Services and for admission in Educational Institutions as at present. An all parties meeting had also been held on 26th November, 1993 in Tamil Nadu urging that there should not be any doubt or delay in ensuring the continued implementation of 69 per cent reservation for the welfare and advancement of the backward classes.

5. The Tamil Nadu Government enacted a legislation namely Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institution and of appointments or posts in the Services under the State) Bill, 1993 and forwarded it to the Government of India for consideration of the President of India in terms of article 31-C of the Constitution.

6. In view of the importance and sensitive nature of the matter, the Union Home Minister held meetings with the leaders of Political Parties on 13th July, 1994 to discuss the provisions of the Bill. The general consensus among the leaders was that the Bill should be assented to. Accordingly, the President gave his assent to the Bill on 19th July, 1994.

7. The Tamil Nadu Government accordingly notified the Tamil Nadu Backward Classes, Schedule Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of appointment or posts in the Services under the State) Act, 1993 as Act No. 45 of 1994 on 19th July, 1994.

8. The Tamil Nadu Government requested the Government of India on 22nd July, 1994 that the aforementioned Tamil Nadu Act 45 of 1994 be included in the Ninth Schedule to the Constitution of India for the reasons given below :
“The said Act attracts article 31C of the Constitution, as falling within the purview of clauses (b) and (c) of article 39 and articles 38 and 46 of the Constitution-vide section 2 of the Act. The Act has been passed relying on the directive principles of State Policy enshrined in Part IV of the Constitution and in particular, articles 38, 39 (b) and (c) and 46 of the Constitution. As the Act is to give effect to the directive principles of State Policy contained, inter alia, in article 39(b) and (c), the said Act will get the protection of article 31C of the Constitution and therefore, cannot be challenged under articles 14 and 19 of the Constitution, with reference to which article 14, the reservation exceeding 50 per cent. has been struck down by the Supreme Court. Now it has been decided to address the Government of India for including the Act in the Ninth Schedule to the Constitution, so that the law cannot be challenged as violative of any of the fundamental rights contained in Part III of the Constitution including articles 15 and 16, and gets protection under article 31B of the Constitution.”

9. The Government of India has already supported the provision of the State legislation by giving the President’s assent to the Tamil Nadu Bill. As a corollary to this decision, it is now necessary that the Tamil Nadu Act 45 of 1994 is brought within the purview of the Ninth Schedule to the Constitution so that it gets protection under article 31B of the Constitution in regard to the judicial review.”
65. In view of the above Constitutional Amendment and the policy of reservation followed even from 1921,26 years before Independence, Act 45 of 1994 providing 69 percentage,18/ for SC,1/ for ST,30/ for BC and 20/ for MBC reservation cannot be said to be unconstitutional casually by anyone without undertaking a challenging journey to our social and geographical setup warranting such an extent of reservation. Tamil Nadu is mostly occupied by the hills and sea shores and the occupation of the people of almost all the communities depend only on those massive creations of God. So, 69% reservation for the State of Tamilnadu in view of the unique and peculiar status of the State with the more population of all the sects of religion cannot be said to be unreasonable.
Further, in view of the judgment rendered by the Hon’ble Apex Court in State of Punjab Vs Davinder Singh dated 27.08.2020 reported in (2020) 8 SCC P1 describing the power of the State Government to provide reservation at paras 52 to 56 and para 58 the legislative competence of the State cannot be questioned and those paragraphs are reproduced below for our convenience.:-
1. “The State has the competence to grant reservation benefit to the Scheduled Castes and Scheduled Tribes in terms of Articles 15(4) and 16(4) and also 341(1) and 342(1). It prescribes the extent/percentage of reservation to different classes. The State Government can decide the manner and quantum of reservation. As such, the State can also make sub-classification when providing reservation to all Scheduled Castes in the List based on the rationale that would conform with the very spirit of Articles 14, 15 and 16 of the Constitution providing reservation. The State Government cannot tamper with the List: It can neither include not exclude any cast in the List or make enquiry whether any synonyms exists.” (Para 52)

2. “The State Government is conferred with the power to provide reservation and to distribute it equitably.The State Government is the best judge as to the disparities in different areas.It is for the State Government to judge the equitable manner in which reservation has to be distributed.It can work out its methodology and give the preferential treatment to a particular class more backward out of Scheduled Castes without depriving others of benefit.” (Para 53)

3. Apart from that, the other class out of Scheduled Castes/Scheduled Tribes/socially and educationally backward classes,who is not denied the benefit of reservation, cannot claim that whole or a particular percentage of reservation should have made available to them. The State can provide such preference on rational criteria to the class within Lists requiring upliftment. There is no vested right to claim that reservation should be at a particular percentage. It has to accord with ground reality as no one can claim the right to enjoy the whole reservation, it can be proportionate one as per requirement. The State cannot be deprived of measures for upliftment of various classes, at the same time, which is the very purpose of providing such measure. The spirit of the reservation is the upliftment of all the classes essential for the nation‘s progress.”
(para 54)

4. In the federal structure, the State,as well as Parliament, have a constitutional directive for the upliftment of Scheduled Castes, Scheduled Tribes, and socially and economically backward classes. Only inclusion or exclusion in the Presidential notification is by Parliament. The State Government has the right to provide reservation in the fields of employment and education. There is no constitutional bar to take further affirmative action as taken by the State Government in the cases to achieve the goal. By allotting a specific percentage out of reserved seats and to provide presidential treatment to a particular class, cannot be said to be violative of the List under Articles 341,342 and 342-A as no enlisted caste is denied the benefit of reservation”. (para 55)

5. “The ‘inadequate representation’ is the fulcrum of the provisions of Article 16(4).It would be open to the State to provide on a national basis the preferential treatment by fixing reasonable quota out of reserved seats to ensure adequate representation in services. Reservation is a very effective tool for emancipation of the oppressed class. The benefit by and large is not percolating down to the neediest and poorest of the poor.” (para 56)

6. After holding so ,the Hon’ble Apex Court at para 58 has held as follows:-
“We endorse the opinion of a Bench of 3 Judges that E.V.Chinnaiyan, (2005)1 SCC394,is required to be revisited by a Larger Bench; more so, in view of further development and the amendment of the Constitution, which have taken place. We cannot revisit E.V.Chinnaiah being Bench of coordinate strength. We request the Hon’ble Chief Justice to place the matters before a Bench comprising of 7 Judges or more as considered appropriate.”
(para 58)
66. In view of the above, the reservation of 69 percent constitutionally and legislatively provided for the State of Tamilnadu has to be upheld as it does not suffer from the vice of any constitutional crisis to get it struck down as unconstitutional and ultravires.