ಪ0ಚಮಸಾಲಿ ಮೀಸಲಾತಿಗೆ ಅ0ತ್ಯ ಕಾಣಿಸಿದ ಸರ್ವೋಚ್ಚ ನ್ಯಾಯಾಲಯದ ತೀರ್ಪು.   

ಎಸ್. ಬಸವರಾಜ್, ವಕೀಲ, ದಕ್ಷ ಲೀಗಲ್,ಬೆOಗಳೂರು.

ಮರಾಠಾ ಮೀಸಲಾತಿಗೆ ಸOಬOದಪಟ್ಟOತೆ ಸರ್ವೋಚ್ಚ ನ್ಯಾಯಾಲಯ ತಾರೀಖು 5:5:2021 ರOದು ನೀಡಿದ ತೀರ್ಪು ಪOಚಮಸಾಲಿ ಮೀಸಲಾತಿ ಹೋರಾಟಕ್ಕೆ ಭಾರೀ ಆಘಾತ ನೀಡಿದೆ. 
ಐದು ನ್ಯಾಯಾದೀಶರಿದ್ದ ಸOವಿದಾನ ಪೀಠದಲ್ಲಿ ಮೂವರು ನ್ಯಾಯಾದೀಶರು, ರಾಜ್ಯಗಳಿಗೆ ಹಿOದುಳಿದ ವರ್ಗಗಳನ್ನು ಪಟ್ಟಿಮಾಡುವ ಅಥವಾ ಈ ಪಟ್ಟಿಗೆ ಸೇರಿಸುವ ಅಧಿಕಾರ ಇಲ್ಲ ಎOದು ಘೋಷಿಸಿದ್ದಾರೆ.  ಕೇOದ್ರಗಳು ಮಾತ್ರ ಈ ಪಟ್ಟಿಮಾಡುವ ಅಧಿಕಾರ ಹೊOದಿರುತ್ತವೆ ಎOದು ಕೂಡ  ತೀರ್ಪು ಹೇಳಿದೆ. 

ಈ ತೀರ್ಪಿನಿOದ ಕರ್ನಾಟಕ ರಾಜ್ಯ ಸರ್ಕಾರಕ್ಕೆ ಪOಚಮಸಾಲಿ ಮೀಸಲಾತಿ ಕುರಿತು ಯಾವುದೇ ನಿರ್ಧಾರ ತೆಗೆದುಕೊಳ್ಲಲೂ ಈಗ ಆಧಿಕಾರವಿರುವುದಿಲ್ಲ. 
ತೀರ್ಪಿನ ಸಾರಾOಶ: 
1). ಇಂದ್ರ ಸಾಹ್ನಿ ತೀರ್ಪನ್ನು ಮರುಪರಿಶೀಲಿಸುವ ಅಗತ್ಯವಿಲ್ಲ ಎಂಬ 1, 2 ಮತ್ತು 3 ಪ್ರಶ್ನೆಗಳ ಬಗ್ಗೆ ಸರ್ವಾನುಮತದ ಅಭಿಪ್ರಾಯ; ಮೀಸಲಾತಿಯ ಮೇಲಿನ 50% ಮಿತಿ ಸಾಂವಿಧಾನಿಕವಾಗಿ ಮಾನ್ಯವಾಗಿದೆ ಮತ್ತು ಮರಾಠಾ ಮೀಸಲಾತಿ ಅಸಾಧಾರಣ ವರ್ಗಕ್ಕೆ ಬರುವುದಿಲ್ಲ ಮತ್ತು ಆದ್ದರಿಂದ ಅಸಂವಿಧಾನಿಕವಾಗಿದೆ.
2) ನ್ಯಾಯಮೂರ್ತಿ ರವೀಂದ್ರ ಭಟ್, ನ್ಯಾಯಮೂರ್ತಿ ಎಲ್.ನಾಗೇಶ್ವರ ರಾವ್ ಮತ್ತು ನ್ಯಾಯಮೂರ್ತಿ ಹೇಮಂತ್ ಗುಪ್ತಾ ಅವರ ಬಹುಮತದ ಅಭಿಪ್ರಾಯವು ಹಿOದುಳಿದ ವರ್ಗಗಳನ್ನು ಪಟ್ಟಿಯನ್ನು ಸಿದ್ಧಪಡಿಸುವ ಅಧಿಕಾರ ಕೇಂದ್ರಕ್ಕೆ ಮಾತ್ರ ಇದೆ ಮತ್ತು ರಾಜ್ಯ ಸರ್ಕಾರಗಳಿಗೆ ಅಧಿಕಾರವಿಲ್ಲ ಎಂದು ಅಭಿಪ್ರಾಯಪಟ್ಟಿದ್ದಾರೆ. ಈ ನಿಟ್ಟಿನಲ್ಲಿ ರಾಜ್ಯಗಳು ಸಲಹೆಗಳನ್ನುಮಾತ್ರ  ನೀಡಬಲ್ಲವು ಎOದು ಹೇಳಿದೆ. 

ಕೆ0ದ್ರ ಸರ್ಕಾರಕ್ಕೆ ಅಧಿಕಾರವಿರುವುದಾದರೂ, ಕೇವಲ ಒ0ದು ಒಳಪ0ಗಡವನ್ನು ಹಿ0ದುಳಿದ ವರ್ಗಕ್ಕೆ ಸೇರಿಸುವುದು ಸುಲಭದ ಮಾತಲ್ಲ. ಮರಾಠಾ ಮೀಸಲಾತಿಯ ವಿಷಯದಲ್ಲಿ ಆ ಪ0ಗಡ ಆಗಲೇ ಸುಮಾರು ಪ್ರತಿನಿದಿತ್ವ ಹೊ0ದಿರುವುದರಿ0ದ ಮೀಸಲಾತಿ ಮಾಡಿದ್ದು ಸ0ವಿದಾನ ವಿರುದ್ದ ಎ0ದು ನ್ಯಾಯಾಲಯ ಹೇಳಿದೆ.

ಈ ಹಿ0ದೆ ಲಿ0ಗಾಯತ ಧರ್ಮಕ್ಕೆ ಧಾರ್ಮಿಕ ಅಲ್ಪಸಂಖ್ಯಾತ ಸ್ಥಾನಕ್ಕೆ ಹೋರಾಟ ಮಾಡಿದರೂ ಫಲಕಾರಿಯಾಗದ್ದನ್ನು ನಾವಿಲ್ಲಿ ಉಲ್ಲೇಖಿಸಬಹುದು. 

ತೀರ್ಪಿನ ಸಾರಾOಶ ಇ0ಗ್ಲೀಷ್ ಭಾಷೆಯಲ್ಲಿ. 
Ratio: Unanimous view on questions 1, 2 and 3 that Indra Sawhney need not be revisited; 50% limit on reservation is constitutionally valid and Maratha reservation does not fall under exceptional category and hence unconstitutional. On questions 4, 5 and 6, Justice Ashok Bhushan,J and Justice S. Abdul Nazeer opine that both Central and State Government can prepare lists of Socially and Economically Backward classes. However, the majority view of Justice Ravindra Bhat, Justice L. Nageswara Rao and Justice Hemant Gupta opine that only the Centre has the power to prepare the list and the State Governments have no power.  States can only make suggestions in this regard.
Judgment Link: https://main.sci.gov.in/supremecourt/2019/23618/23618_2019_35_1501_27992_Judgement_05-May-2021.pdf
Questions framed: Question 1. Whether judgment in case of Indra Sawhney v. Union of India needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.?
Question 2. Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case?
Question 3. Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the 12 exception carved out in the judgment of Indra Sawhney?
Question 4. Whether the Constitution 102nd 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?
Question 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?
Question 6. Whether, Article 342A of the Constitution abrogates States power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?”
Relevant paragraphs. Majority Judgment Justice Ashok Bhushan,J. (for himself and S. Abdul Nazeer, J.), L.Nageswara Rao,J. Hemant Gupta,J. and S. Ravindra Bhat have also concurred on Question Nos. 1, 2 and 3.
Regarding Indra Sawhney 129…. ratio of judgment of Indra Sawhney as expressed by the majority is one which is expressed in paragraphs 809 and 810 of the judgment of Justice B.P. Jeevan Reddy.
129….The majority opinion of Indra Sawhney is that normally reservation should not exceed 50% and it is only in extra-ordinary circumstances it can exceed 50%. What can be the extra-ordinary circumstances have been indicated in paragraph 810.
131. Indraw Sawhney analysed.:
(i) Reservation under Article 16(4) should not exceed 50%.
(ii) For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which extreme caution is to be exercised.
132. The above is the ratio of Indra Sawhney judgment.
133. We do not find any good ground to revisit Indra Sawhney or to refer the same to a larger Bench on the above ground urged.
159….we proceed on the premise that Article 16(4) is not an exception to Article 16(1).
161……We need to answer the question from where does 50% rule come from?
162….. Indra Sawhney itself gives answer of the question
174.. Article 16(4B)…. , the Constitutional Amendment in fact recognize the 50 percent ceiling which was approved in Indra Sawhney’s case and on the basis of above Constitutional Amendment, no case has been made out to revisit Indra Sawhney.
162…..In paragraph 807 of Indra Sawhney held that what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointment.?
162…50% has been said to be reasonable and it is to attain the objective of equality.
164. To change the 50% limit is to have a society which is not founded on equality but based on caste rule.
164…..If the reservation goes above 50% limit, which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same.
164….Thus, answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets.
174. The judgment of Indra Sawhney is being followed for more than a quarter century without there being any doubt raised in any of the judgments about the 50%, the 50% rule has been repeatedly followed.
214. We thus are of the view that extraordinary situations indicated in paragraph 810 are only illustrative and not exhaustive but paragraph 810 gives an indication as to which may fit in extra ordinary situation.
214….. The judgment of Indra Sawhney has been repeatedly followed by this Court and has received approval by at least four Constitution Benches of this Court as noted above.
214….We also follow and reiterate the prepositions as laid down by this Court in Indra Sawhney in paragraphs 809 and 810. We further observe that ratio of judgment of Indra Sawhney is fully applicable in context of Article 15 of the Constitution.
245. In view of the foregoing discussion, we are of the considered opinion that neither the Gaikwad Commission’s report nor the judgment of the High Court has made out an extra-ordinary situation in the case of Maratha where ceiling of 50% can be exceeded.
256. We have found that no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 percent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16.
256….The exceeding of ceiling limit without there being any exceptional circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.
257. We thus conclude that the Act, 2018 as amended in 2019, granting separate reservation for Maratha community has not made out any exceptional circumstances to exceed the ceiling of 50 percent reservation.
292…..When we calculate the percentage of Maratha representation out of the open category filled post, percentage comes out to 33.23 percent. Thus, the correct percentage of Maratha out of the open category post is 33.23 percent which indicates that more than 33 percent of the open category post has been bagged by Maratha.
305. 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.
306…..We thus hold that Maratha class was not entitled for any reservation under Article 16(4) and grant of reservation under Article 16(4) is unconstitutional and cannot be sustained.
327. We have completed more than 70 years of independence, all governments have been making efforts and taking measures for overall developments of all classes and communities.
327….There is a presumption unless rebutted that all communities and castes have marched towards advancement.
328. We are constrained to observe that when more people aspire for backwardness instead of forwardness, the country itself stagnates which situation is not in accord with constitutional objectives.
Para 444. 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) The cap on percentage of reservation as has been laid down in Indra Sawhney is with the object of striking a balance between the rights under Article 15(1) and 15(4) as well as Articles 16(1) and 16(4) . The cap on percentage is to 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 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) Indra Sawhney is also fully applicable in reference to Article 15(4) of the Constitution of India.
(8) …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 that extraordinary situations indicated in paragraph 810 (Indra) were only illustrative and cannot be said to be exhaustive. We do not agree 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 for revisiting and referring the judgment of Indra Sawhney to a larger Bench.
12…The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this Court.
(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.
(14)…Maratha reservation …is not covered under the parameters indicated in Indra Sawhney’s case as extra-ordinary circumstance to breach 50% ceiling.
(15)….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.
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 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.
(19)…..The representation of Marathas in public services in Grade A, B, C and D comes to 33.23%, 29.03%, 37.06% and 36.53% computed from out of the open category filled posts, is adequate and satisfactory representation of Maratha community.
(20)…… 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)…..Sufficient and adequate representation of Maratha community in public services is indicator that they are not socially and educationally backward.
(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.
(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.
(25)…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) The consultation by the State on all policy matters affecting the socially and educationally backward classes is now mandatory as per subclause (9) of Article 338B.
(27) ….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)…..we see no reason not to interpret Article 342A in manner as per the intention of the Parliament noticed above.
(29) ….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.
(30)……list of backward classes which is not Central List shall not be governed by the definition under Article 366(26C).
(31)….Article 342A was brought by Constitution 102nd Amendment to give constitutional status to National Backward Classes Commission and for publication of list by the President of socially and educationally backward classes which was to be Central List for governing employment under Government of India and the organisations under it.
(32) The Constitution 102nd Amendment Act, 2018 does not violate any basic feature of the Constitution. We uphold the constitutional validity of Constitution (One Hundred and second Amendment) Act, 2018.
ORDER
1. Section 2(j) of the Act, 2018 insofar as it declares Maratha community Educationally and Socially Backward Category is held to be ultra vires to the Constitution and struck down.
2. Section 4(1)(a) of Act, 2018 as amended by Act, 2019 insofar as it grants reservation under Article 15(4) to the extent of 12% of total seats in educational institutions including private institutions whether aided or unaided by the State, other than minority educational institutions, is declared ultra vires to the Constitution and struck down.
3. Section 4(1)(b) of Act, 2018 as amended by Act, 2019 granting reservation of 13% to the Maratha community of the total appointments in direct recruitment in public services and posts under the State, is held to be ultra vires to the Constitution and struck down.
4. …Students who have already been admitted in Postgraduate Medical Courses prior to 09.09.2020 shall be allowed to continue.
5….Admissions and appointments till 09.09.2020  are saved. no further benefit can be claimed by such Maratha students admitted in different course or Maratha students who were appointed in public services in the State under Act, 2018
6. After the order was passed on 09.09.2020 neither any admission can be taken in the educational institutions nor any appointment can be made in public services and posts in accordance with Act, 2018.
Justice L. Nageswara Rao …..I am in agreement with the opinion of Justice Ashok Bhushan in respect of question Nos.1, 2 and 3. As these issues have been dealt with exhaustively by Justice Ashok Bhushan, I do not have anything further to add. Question Nos.4, 5 and 6 pertain to the interpretation of Article 342 A of the Constitution of India. On these questions, I am unable to persuade myself to accept the conclusion reached by Justice Ashok Bhushan. I agree with the denouement of the judgment of Justice S. Ravindra Bhat on issue Nos.4, 5 and 6.
Justice Hemant Gupta  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. I entirely agree with the reasoning and the conclusions in the Judgment and order authored by Hon’ble Shri S. Ravindra Bhat, J. and Hon’ble Shri L. Nageswara Rao, J. on Question Nos. 4, 5 and 6.
Justice S. Ravindra Bhat 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.
2. The Act, 2018 as amended in 2019 ….is not covered by exceptional circumstances as 130 contemplated by Constitution Bench in Indra Sawhney’s case. I agree with the reasoning and conclusions of Ashok Bhushan, J. on this point.
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.
The President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.
The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1)
Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all 131 purposes of the Constitution, in relation to each state and in relation to every union territory.Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all 131 purposes of the Constitution, in relation to each state and in relation to every union territory.
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.
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.
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.
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.
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.