SHADOW JUDGMENT EXERCISE

Submitted by

Kashish Chhabra

B.B.A. LL.B. Division: B PRN: 18010224080

Of

Symbiosis Law School, Noida

Symbiosis International (Deemed University), Pune

In

March, 2020

Under the guidance of

Ms. Charvi Kumar

Assistant Professor

Symbiosis Law School, NOIDA

 IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 274 OF 2014

RAM SINGH & ORS. ...PETITIONER (S)

VERSUS
UNION OF INDIA ...RESPONDENT (S)

Relevant Acts/ Statutes that are been analyzed in the case.

Constitution of India-Articles 15, 15(4), 16, 16(4), 29, 38, 46, and 340.

The National Commission of Backward Classes Act-Sections 2, 3, 8, 9, 9(1), 9(2),

and 11.

Code of Civil Procedure-Section 114, Order 47.

1. This court has observed the facts for the case, that The National Commission for
Backward Classes, after receiving several requests for inclusion of Jat community of
the states of Rajasthan, Bihar, Gujarat, Haryana, Madhya Pradesh and Uttar
Pradesh in the Central list of Backward Classes prepared a report, wherein it
recommended inclusion of only the Jat community of Rajasthan, except the
Bharatpur and Dhaulpur districts.

2. However on 25th November 2010, on the question of inclusion of Jats in the

Central list of OBC, the NCBC submitted a report rejecting their claims.

3. On 3rd May 2011, the NCBC (power to review advice) rules were framed, and
NCBC was empowered to review its own advice given to the Government in the
above 2 reports. Rule 4 of the Rules provides that the “provision of Section 114 and
Order 471 of the Code of Civil Procedure, 1908 shall mutatis mutandis apply to a
review undertaken by the Commission.”

4. On 19th July 2011, the NCBC approached the Indian Council for Social Science
Research to conduct a full-fledged survey to assess the socio-economic conditions
of the Jat community. The NCBC, later on in October 2012, instead decided to
restrict the survey to a 2% sample survey.

5.The Prime Minister, in 2013 notified of a Cabinet committee, which then

approached the NCBC to review its earlier decision on a sample survey. The NCBC
then on the basis of some public hearings, decided that the Jat Community does
not fulfill the criteria for inclusion in the Central List of backward communities. It
was found by the NCBC that Jats were not socially or educationally backward, nor
were they under-represented in employment and educational institutions.

6.On 2nd March 2014, the Union Cabinet decided to disapprove the advice of the
NCBC and to instead include the Jat Community in the Central List. Followed by
which, on , the impugned notification was released.

7. Furthermore, court observed the issue which has raised that whether the
notification issued by the Union Government on March 4th, 2014, that was set out
for an inclusion of Jat community in the Central list of backward classes was
constitutional?

8.The relevant Constitutional and Statutory provisions which would be used for the
determining of the issue(s) are:

Article 15 of the Constitution prohibits discrimination on ground of religion, race, caste,
sex or place of birth. Clause (4) of Article 15 provides that "nothing in this article or in
clause (2) of article 29 shall prevent the State from making any special provision for
the advancement of any socially and educationally backward classes of citizens or for
the Scheduled Castes and the Scheduled Tribes". Article 16 which provides for equality
of opportunity in matters of public employment provides in Clause (4) thereof that
"nothing in this article shall prevent the State from making any provision for the
1
Section 114 and Order 47 of the Code of Civil Procedure, provides the right to review the judgment. Section 114
only provides to review the judgment and Order 47 allows to review limitations and conditions.
reservation of appointments or posts in favor of any backward class of citizens which, in
the opinion of the State, is not adequately represented in the services under the State".

9. Article 38 of the Constitution enjoins a duty on the State to endeavor to promote the
welfare of the people by securing and protecting as effectively as it may a social order
by, inter alia, eliminating inequalities in status, facilities and opportunities not only
amongst individuals but also amongst groups of people either residing in different areas
or engaged in different vocations. Article 46 casts upon the State a duty to promote the
educational and economic interests of the weaker sections of the population particularly
of the Scheduled Castes and Scheduled Tribes and to protect such citizens from social
injustice and exploitation. Article 340 of the Constitution envisages the creation of a
Commission, inter alia, to investigate the conditions of the socially and educationally
backward classes and the difficulties under which such classes labor; and to make
recommendations as to the steps that should be taken to remove such difficulties and
improve their conditions etc.

10. The National Commission of Backward Classes Act, 1993 which was enacted by the
decision of this Court in Indra Sawhney & Ors. Vs. Union of India & Ors.2 The
commission has relevant sections which are dealing with the case.

Section 2(a) and 2(c) provides as follows:

"2(a) - "backward classes" means such backward classes of citizens other than the
Scheduled Castes and Scheduled Tribes as may be specified by the Central
Government in the lists;
2(c) - "lists" means lists prepared by the Government of India from time to time for
purposes of making provision for the reservation of appointments or posts in favour
of backward classes of citizens which, in the opinion of that Government, are not
adequately represented in the services under the Government of India and any
local or other authority within the territory of India or under the control of the
Government of India".
11. Section 3 deals with constitution of NCBC. It provides that the NCBC shall
consist of the following persons nominated by the Central Government. A
Chairperson, who is or has been a Judge of the Supreme Court or of a High Court.

2
AIR 1993 SCC 477, 1992 Supp 2 SCR 454
Section 8 of the Act empowers the Commission to lay down its own procedure
while Section 10 enumerates the powers of the Commission while performing its
functions under Section 9(1) of the Act. There is no specific provision in the Act
which empowers the Central Government to override the advice/recommendation of
the Commission.

12. The court has been observed these arguments on behalf of the respondents
that the power of providing reservation to the Jat community as a backward class
flows from Article 16(4) of the Constitution.

That the advice of the NCBC is not binding according to the Rule 9 of the NCBC Act 3
as argued before us in this Court by learned counsel for the petitioner and holds no
relevance as far as the powers of the Government under Article 16(4) 4 is
concerned. That the said notification is not released in an exercise of power under
Section 95 of the NCBC Act.

13. And the NCBC had deferred any decision on the inclusion of the community
since 2011, and hence the reports are not reliable.

That State lists of OBCs formulate enough grounds for any community to be
included in the Central list.

It has been analyzed that the test which are laid down in Indira Sawhney were not
fully satisfied by the Jat Community.

14. The learned Attorney General has taken us through the exhaustive materials on
record i.e. the report dated 26.2.2014 of the NCBC; the reports of the various State
Commissions; and report of the ICSSR 6 including the report of the IIPA 7 relied upon
by the ICSSR.

15. The extracts of the Minutes of the Meeting of the Cabinet which was held on
2nd March, 2014 which had preceded the impugned notification dated 4th March,

3
ibid
4
ibid
5
ibid
6
Indian Council of Social Science Research (1969)
7
The Indian Institute of Administration (1954)
2014 tends to overlook the fact that crucial test for determination of the
entitlement of the Jats to be included in the Central Lists is social backwardness.
This would be evident from Para 3 of the Minutes of the Cabinet Meeting dated 2nd
March, 2014 is that analyzed that In so far as Haryana is concerned, the test
adopted appears to be educational backwardness. Similarly for the NCT of Delhi
also, educational backwardness has been taken into account as the determining
factor for inclusion of Jats along with the fact that the Jats are behind the Gujars
who are already included in the Central Lists of OBCs. Similarly, in Uttar Pradesh
and Uttarakhand, the test appears to be educational backwardness; same is the
position with regard to Rajasthan. Though the States of M.P., Gujarat and Bihar
have also been included in the Central Lists of OBCs by impugned notification, no
apparent consideration of the cases of these States is reflected in the Minutes of the
Cabinet Meeting dated 2nd March, 2014. Of course, the Cabinet is not expected to
record the manner of its consideration of each of the States but when it is done so
for some of the States, the absence of any mention of the other States would be a
strong basis to conclude that the States that do not find any mention in the
Minutes, in fact, did not receive the consideration of the Cabinet, at all.

16. Past decisions of this Court in M.R. Balaji Vs. State of Mysore8 and Janaki
Prasad Vs. State of Jammu & Kashmir9 had conflated the two expressions used in
Articles 15(4) and 16(4) and read them synonymously. It is in Indra Sawhney's
case (supra) that this Court held that the terms "backward class" and "socially and
educationally backward classes" are not equivalent and further that in Article
16(4) the backwardness contemplated is mainly social. The above interpretation of
backwardness in Indra Sawhney (supra) would be binding on numerically smaller
Benches. Therefore, "educational backwardness" would not be taken into account.

17. For the various reasons indicated, we cannot agree with the view taken by the
Union Government that Jats in the 9 (nine) States in question is a backward
community so as to be entitled to inclusion in the Central Lists of Other Backward
Classes for the States concerned. The view taken by the NCBC to the contrary is
adequately supported by good and acceptable reasons which furnished a sound and
8
1963 AIR 649, 1962 SCR Supl. (1) 439
9
1973 AIR 930, 1973 SCR (3) 236
reasonable basis for further consequential action on the part of the Union
Government. In the above situation we cannot hold the notification dated 4.3.2014
to be justified. Accordingly the aforesaid notification bearing No. 63 dated 4.3.2014
including the Jats in the Central List of Other Backward Classes for the States of
Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, NCT of Delhi,
Bharatpur and Dholpur Districts of Rajasthan, Uttar Pradesh and Uttarakhand is set
aside and quashed.

………..J

HON’BLE JUSTICE KASHISH CHHABRA

NEW DELHI.

(17th March, 2015)