In the recent Maratha reservation case, the relevant questions before the Supreme Court were whether the Maratha community is backward and whether extraordinary circumstances exist to warrant reservation in excess of the 50% ceiling. Other constitutional issues the court opined on were not relevant to these questions, writes SANTHOSH KRISHNAN.
Jaishri Laxmanrao Patil vs Chief Minister, on the scope of reservation permissible under the Constitution for Socially and Educationally Backward Classes (SEBCs) of citizens. Three aspects of the decision are discussed here: (1) Whether the constitutional issues framed for consideration, in this case, were ripe for adjudication. (2) Whether the “subjective satisfaction” standard of judicial review, as discussed in the judgement, was relevant to assessing the issues in this case. (3) Whether the majority view on the interpretation of Article 342A will sustain.N 5 May, a five-judge Constitution Bench of the Supreme Court delivered an elaborate judgement in
Reservation for Marathas
Maharashtra enacted the Maharashtra State Socially and Educationally Backward Class Reservation Act, 2018, providing 16% reservation to the Maratha community in educational institutions and entry-level employment in the state’s public services. This legislation came on the heels of a recommendation of the State Backward Class Commission that the Maratha community in Maharashtra was “backward”, as understood in Articles 15 and 16 of the Constitution.
The legitimacy of identifying the dominant Maratha community as “backward” was in question. Assuming the community was backward, the reservation proposed was over the 50% ceiling drawn in Indra Sawhney vs Union of India (1992), by a nine-judge bench of the Supreme Court. This judgement generally prohibits reservation over 50% except in “extraordinary circumstances”.
There was also a doubt whether a state government can identify any class as “backward” under the Constitution, with regards to the newly-incorporated Article 342A introduced in 2018 by the 102nd Amendment to the Constitution.
The Bombay High Court rejected the challenge to the validity of the legislation. It held that the Marathas were legitimately described as “backward” and that the legislation satisfied the test of “extraordinary circumstances” envisaged in Indra Sawhney, thereby warranting a breach of the 50% ceiling.
The High Court also held that Article 342A does not prevent a state government from identifying backward classes for reservation. However, the High Court directed that the percentage of reservation for Marathas should stick to the recommendation of the State Backward Class Commission.
Thus, it directed a reduction in the percentage of reservation for the Maratha to 12% in educational institutions and 13% in the state public services.
In appeal before the Supreme Court, the state not only relied on the findings of the High Court but also questioned the legitimacy of the 50% ceiling. According to the state government, this ceiling was reading into the Constitution what it neither written nor intended. It also questioned whether the majority of judges in Indra Sawhney had even held that there should be a ceiling of 50%.
A three-judge bench of Justices L Nageswara Rao, Hemant Gupta and Ravindra Bhat heard the case and referred the appeal to a larger bench on 9 September 2020. The basis for the reference was that a substantial question of interpretation relating to Article 342A arose in the case.
The three-judge bench recorded the state’s contention regarding the correctness of Indra Sawhney but categorically declined to make any reference of that question to a larger bench.
The five-judge bench (Constitution Bench) consisted of justices Ashok Bhushan and Abdul Nazeer, in addition to the three judges who comprised the referral bench. It framed six questions, which are, in brief, below:
1. Should Indra Sawhney be reconsidered?
2. Assuming it does not require reconsideration, were there “extraordinary circumstances” that warranted reservation in favour of Marathas beyond the 50% ceiling?
3. Was the State Backward Classes Commission justified in describing the Maratha community as backward?
4. Does Article 342A deprive state legislatures of the ability to identify socially and educationally backward classes?
5. Whether the powers of the state legislature to legislate on the backward classes under Articles 15(4) and 16(4) are abridged by Article 342A?
6. Does Article 342A affect the federal structure of the Constitution?
The Constitution Bench delivered four opinions. Justice Bhushan’s view represents the view of all the judges on questions 1, 2, and 3. On the next two questions, Justice Bhushan’s is the minority opinion and Justice Bhat’s is the leading opinion and got the concurrence of Justices Rao and Gupta.
On the last question, Justice Bhat concurred with Justice Bhushan, but Justices Rao and Gupta expressly concurred with Justice Bhat rather than Justice Bhushan. Thus, the opinion of Justice Bhat is the leading opinion on questions 4, 5 and 6.
The unanimous view of the Constitution Bench on the first question was that there was no need to refer Indra Sawhney to a larger bench. On the second question—a 50% limit on reservation—all five judges agreed that Indra Sawhney’s requirement of “exceptional circumstances” was not met in the legislation impugned in the present case.
On question 3—whether the Maratha community is backward—the court found, based on the material placed before it, that the Maratha community was not “backward”.
On the fourth question, Justice Bhat held that Article 342A does deprive state legislatures of the ability to identify socially and educationally backward classes. Consequently, he also holds (in answer to question 5) that the power of states to identify SEBCs under Articles 15 and 16 has been taken away.
On question 6—related to the federal structure—Justice Bhat held the view that Article 342A does not damage the federal structure of the Constitution.
In contrast, Justice Bhushan held the view that Article 342A does not bar states from identifying SEBCs (question 4). According to him, the “Central List” envisaged in Article 342A is meant for central services and Parliament never intended to take away the power of states to identify SEBCs and bring reservations at the state and local level into effect.
Based on this finding, on question 5, Justice Bhushan expressed the view that the states’ power to legislate about the backward classes under Articles 15(4) and 16(4) is not abridged by Article 342A. Consequently, on the sixth question, there is no violation of the federal structure of the Constitution.
Justice Rao’s opinion deals only with the interpretation of Article 342A and defers to that of Justice Bhushan on the first three questions. He also concurs with the opinion of Justice Bhat on questions 4, 5 and 6. Similar is the case with the short order issued by Justice Gupta.
The first question—on which the court delivered a unanimous verdict—was not a question that was referred for adjudication. In the order of reference, the three-judge bench consisting of Justices Rao, Gupta and Bhat had considered the rival positions taken on whether Indra Sawhney should be reconsidered.
The three-judge bench had categorically held that there was no need to refer this question to the larger bench as Indra Sawhney was never doubted and consistently followed.
But, in setting out the background in the judgement, Justice Bhushan says: “Referring order although mention that the interpretation of Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution but the reference was not confined to the above question.”
The above observation as to the scope of reference by the three-Judge Bench is ex facie incorrect. A passage from the reference order makes this clear:
“We are not in agreement with the learned counsel for the applicants that the appeals warrant reference to a larger bench. Undoubtedly, this Court in Indra Sawhney held that reservations contemplated in Article 16(4) should not exceed 50% except in certain extraordinary situations… the ceiling limit of 50% on reservations has been re-affirmed by this Court in M. Nagaraj… it cannot be said that any substantial question of law as to the interpretation of the Constitution arises in this case…”
It is a generally accepted principle of civil procedure that issues that do not arise for consideration should not be decided by the court (Bachhaj Nahar vs Nilima Mandal, 2008). This principle of civil procedure also takes shape as a principle for constitutional adjudication—a constitutional question should not be decided unless necessary (see Naresh Shridhar Mirajkar vs the State of Maharashtra).
In American jurisprudence, this doctrine of “constitutional avoidance” is well known and well kept (see Ashwander vs Tennessee Valley Authority, 1936. This doctrine has been affirmed as part of Indian jurisprudence by the Supreme Court in Minerva Mills Ltd. vs Union of India, 1980.
Where constitutional questions are answered without necessity, the court exercises an advisory and not adjudicatory jurisdiction. Of course, legal conventions do not tie the hands of the court. A larger bench can overrule a referral bench even on the scope of the reference. But in this case, the judgement nowhere discloses why the Constitution Bench disregarded the express mandate of reference.
Oddly enough, the judgement records that an argument was made by one of the lawyers that the Constitution Bench need not decide whether Indra Sawhney should be reconsidered because the referral order expressly rejected the necessity to refer that question.
However, there is no finding returned in respect of this contention. The opinion of Justice Bhushan runs to 411 pages in which the discussion on the first question ends at page 191. By the end of it, the Constitution Bench has only endorsed the view of the referral bench—that no reconsideration of Indra Sawhney was necessary.
It is with some justification that the nine-judge bench in Naresh Shridhar Mirajkar observed that counsel may often argue on a wider canvass but it is the court’s duty to decide as narrowly as possible.
The second and third questions framed by the court warranted a purely factual enquiry. The court conducted this factual enquiry and rendered a unanimous opinion that: (1) there were no exceptional circumstances in Maharashtra warranting the transgression of the ceiling of 50%, (2) Marathas were wrongly described as a backward class by the State Backward Classes Commission.
Subjective satisfaction standard
The conclusion of the court brooks no debate. However, in undertaking the elaborate factual enquiry, the judgement has discussed standards for judicial review and identified the “subjective satisfaction” standard enunciated in Barium Chemicals vs CLB as relevant. This aspect merits further analysis.
What is the “subjective satisfaction” standard? Barium Chemicals is a judgement rendered more than 50 years ago that interpreted Section 237 of the (now repealed) Companies Act, 1956. The provision stated that an investigation may be ordered into the affairs of the company “if in the opinion of the central government” certain specified circumstances had arisen. The words “in the opinion of”, as occurring in this statutory provision, was read as implying a “subjective satisfaction” of the Central Government.
The “subjective satisfaction” standard does not permit a court to review the aptness or sufficiency of grounds on which the authority bases its decision. It, however, permits the court to review whether the circumstances set up to justify a decision exist.
The subjective satisfaction standard enunciated in Barium Chemicals was adopted in Indra Sawhney. But the adoption concerned judicially reviewing the adequacy of representation in public services. This standard had nothing to do with identifying a community as “backward”.
A specific question was formulated in Indra Sawhney whether “the extent of judicial review be limited or restricted in regard to the identification of Backward Classes”? Answering this question, Justice Jeevan Reddy, who delivered the leading opinion, observed, “There is no particular or special standard of judicial scrutiny in matters arising under Article 16(4) or for that matter, under Article 15(4)”.
It is therefore surprising that in addressing question 3—“was the State Backward Classes Commission justified in describing the Maratha community as backward”—the court’s attention was mistakenly drawn to an irrelevant standard of judicial review. It is ironic that having juxtaposed this standard in its consideration, the court quite obviously transgressed it by making a detailed factual examination.
The court’s copious reference to an unduly narrow standard for judicial review, while irrelevant to the outcome of this case, may skew outcomes in future cases.
Once the state of Maharashtra was unable to establish that there were exceptional circumstances to exceed the 50% ceiling, the reservation failed. Similarly, if the Maratha community is not “backward”, there is no scope for any reservation, regardless of the answer to any other question.
There was thus no surviving necessity to deal with the effect of Article 342A or any other question. However, since the interpretation of Article 342A itself was the basis for the reference to the Constitution Bench, perhaps it felt compelled to answer it. This is still a weak basis for constitutional adjudication. A reference can be returned as unnecessary (Mathai vs George, 2016).
A split verdict was rendered by the court on questions 4 to 6. The three judges who composed the referral bench (Justices Rao, Gupta and Bhat) held that the newly introduced Article 342A takes away the states’ power to identify SEBCs. The dissenting opinion of Justice Bhushan heavily relies on background material to the amendment to hold that there was no parliamentary intent to deprive states of this power.
The divergence in opinions of the judges on this set of questions presents a classic illustration of the plasticity of principles of constitutional or statutory interpretation. The divergence appears to be premised on each judge’s perception as to what seems right.
We must appreciate the candour of disclosure in the opinion of Justice Bhat that “constitutional adjudication involves making choices”. How else can it be rationalised that the same provision (Article 342A) has been interpreted by application of the same yardstick (purposive interpretation) to mean opposite things by the different judges? To illustrate, the dissenting opinion of Justice Bhushan refers to a prior opinion delivered by none other than himself in State (NCT of Delhi) vs UOI, 2018, to emphasise that the interpretation of constitutional provisions should be purposive.
Disagreeing with Justice Bhushan, the opinion of Justice Rao refers to the very same prior opinion of Justice Bhushan in NCT of Delhi as authority for the proposition that purposive interpretation is best achieved by giving effect to the text of the provision. It appears that even dry legal cases sometimes invite wry amusement.
The correctness of the majority view is easily demonstrable with a bare reading of the provision concerning SEBCs. Article 342A reads as follows:
“(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the SEBCs which shall for the purposes of this Constitution be deemed to be SEBCs in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the Central List of SEBCs specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”
Along with the introduction of Article 342A, Parliament specifically introduced Article 366 (26C) which reads” “Socially and educationally backward classes” means such backward classes as are so deemed under Article 342A for the purposes of this Constitution…”
It is apparent from the text that Article 342A centralises the power to issue notification identifying a community as SEBC with the President alone. When such inclusion pertains to a State, the President is to consult the concerned Governor.
With the simultaneous incorporation of Article 366 (26C), the meaning of “socially and educationally backward classes”, occurring throughout the Constitution (including Article 15) is referable exclusively to classes as identified under Article 342A. There is no scope for a State to identify SEBC by itself, without recourse to Article 342A.
The alternate view that the list under Article 342A relates to a “central list” concerning only central institutions is an unnatural reading of the text. It is with some justification that Justice Rao describes the alternate view as “reading words which are not there in the provision” and Justice Bhat joins by stating that “the other interpretation, with respect, would be unduly narrow and restrictive; it would have the effect of adding words…”
But being legally right may yet have nothing to do with “getting it right”.
Questions 4, 5 and 6 pertain to the division of powers between the Centre and the states. In the ordinary course, any dispute regarding the division of powers between them is contested, with each side desiring a greater share of power.
But this was a unique and unprecedented case where both the Centre and states agreed that the latter is equally empowered to identify SEBCs. The Attorney General of India led the charge for recognition of the co-extensive power of states.
This being the political position on a fundamentally political question, it is difficult to fathom the broader purpose of a lonely stake-out by three judges as to the “real meaning” of Article 342A. It is ironic that the majority interpretation has hinged on a textual reading of Article 342A. Such caution did not inhibit the judicial superimposition of the 50% reservation ceiling in Indra Sawhney which had no basis in the text of the Constitution.
From a consequentialist standpoint, by rejecting the consensus view of the Centre and states, the majority opinion appears to have paved the way for another amendment to the Constitution.
The majority opinion of Justice Bhat admits that individual choice permeates even constitutional adjudication but clarifies that “choices are not made randomly, or arbitrarily, but based on a careful analysis of the rights involved, the remedies proposed…and so on…”. In this case, both the majority and minority opinions have undertaken careful analysis but entered opposite findings.
It is therefore left to the discerning reader whether the qualifications interposed by Justice Bhat are at all relevant in understanding judicial choices.
None of the constitutional issues framed for consideration, in this case, were ripe for adjudication. The case was capable of being disposed of with adjudication of questions 2 and 3. The “subjective satisfaction” standard of judicial review, as discussed in the judgement, was irrelevant to assessing whether Marathas were “backward”.
The majority view on the interpretation of Article 342A, while legally correct, will likely be overcome by another amendment to the Constitution.
(Santhosh Krishnan is an advocate-on-record, Supreme Court of India. The views expressed are personal.)