– Ishika Garg
The Supreme Court struck down the Maharashtra State Reservation (of seats in educational institutions in the state and for appointments in public service and posts under the state) for Socially and Educationally Backward Classes (Hereinafter, “SEBC”) Reservation Act, 2018 in the case of Dr Jaishri Laxmanrao Patil v. the Chief Minister (Hereinafter, “Patil”).
In 2017, the ruling government constituted a 11-member commission under the chairmanship of Retired Justice M. G. Gaikwad. The Commission concluded that Marathas fell under the category of SEBC and hence, should be given reservation. It was on the basis of this report that the state government passed the 2018 Act which granted 16% reservation for Marathas in the state’s educational institutions and appointments to public service. In Patil, the petitioner questioned this report on various grounds right from jurisdiction to validity. Thus arose the question of the parameters of the court’s power of judicial review in cases involving scrutiny of such reports.
In this context, a modified version of Prof. Tarunabh Khaitan’s analogy comes to mind. Let us compare an affirmative action policy to a piece of jewellery, and the Court to a jeweller, who is examining this jewellery through a magnifying lens. Then, the intensity of magnification of the lens can be compared to the standard of judicial review. Implicit in this analogy is the understanding that the Court can apply varying degrees of judicial review. Prof. Khaitan explains that in cases where the judiciary is called upon to review the decision of another executive authority, the standard of judicial review it chooses will be deferential, and hence of a lower intensity.
Now, as recognised by the Supreme Court in Ashoka Kumar Thakur v. Union of India, the standard of judicial review in matters of reservations can have an impact on the very scope of reservation policies. Such a standard is central to the legal dimension of affirmative action, and the way in which the courts set and apply this standard can have a huge impact on the drafting of all future policies in this area. For instance, the decision of the US Supreme Court in Regents of the University of California v. Bakke, which allowed race to be considered as a factor for reservations in college admissions, had wide-ranging consequences on all future educational affirmative action policies in the USA.
As argued by scholars, in practice, judicial review can often be viewed as the final stage in a policy-making process. Just how a jeweller cannot examine a particular piece of jewellery without a glass of the proper magnification, applying an inappropriate standard of judicial review in one scenario can have negative consequences. For example, applying a standard of scrutiny to the decision of an executive authority which is too broad, might unjustly overpower the judiciary and lead to the striking down of even those affirmative action policies which are rightly enforced by the state within the bounds of its constitutional power.
With this in mind, in this post, I delve into the standard of judicial scrutiny applied in the present case. In the first section of this post, I discuss the ‘what’ and ‘why’ of the judicial scrutiny standard used by the Court and demonstrate its incorrect application. In the second section, I show how even if this standard is allowed to be incorrectly applied in the present matter, the Court has clearly breached it.
The Standard of Judicial Scrutiny Used
In the process of delimiting the presently applicable standard of judicial review, the Supreme Court made a copious reference to the subjective satisfaction standard laid down by a constitution bench in the case of The Barium Chemicals Ltd. And Anr v. The Company Law Board (Hereinafter, “Barium Chemicals”). Now, what exactly is this subjective satisfaction standard?
In Barium Chemicals, the Court was tasked with the interpretation of Section 237 (now repealed) of the Companies Act, 1956. The section stated that an investigation may be ordered into the affairs of a company “if in the opinion of the central government” certain specified circumstances had arisen. In that case, the phrase ‘in the opinion of’ in the section was read by the Court as suggesting a ‘subjective satisfaction’ of the Central Government. Justice Shelat held that such ‘subjective satisfaction’ of the executive is limited, but not wholly out of the scope of judicial review. While the court cannot be allowed to review the aptness or sufficiency of grounds on which an executive authority bases its decision, it can examine whether the circumstances relevant for the formation of such an opinion or ‘subjective satisfaction’ by the executive existed. If such an opinion is found to suffer 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 in court.
The reason for the Court’s adoption of this standard in the present case was that this standard was also applied in the landmark case of Indra Sawhney v. Union of India (Hereinafter, “Sawhney”), which also dealt with the question of judicial scrutiny of the opinion of the state in the matter of the grant of reservation. However, the Supreme Court in the present case has failed to identify clearly the difference between Patil and Sawhney in the questions of law and reasons for such application.
To better understand the reasons for application of the Barium Chemicals standard in Sawhney, regard must be had to the text of 16(4) of the Constitution, which reads as follows:
“Nothing in this article shall prevent the State from making any provision for the 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”
In order to decide on the applicability of Barium Chemicals, we must analyse if there is any matter which is left to the ‘subjective satisfaction’ of the state in this regard. Upon a cursory reading of this provision, we see that it is the decision on whether a particular backward class is adequately represented in the state services or not which lies within the subjective satisfaction of the State. The reason for arriving at this conclusion is the presence of the words ‘in the opinion of the state’ in Article 16(4) of the Constitution. What becomes clear immediately is that there is no mention of the subjective satisfaction of the state in relation to identifying a community as a ‘backward class’. Ifthe State, after subjectively satisfying itself, finds that a particular class is inadequately represented, then it can declare the same as a backward class. It was in the context of judicially reviewing the adequacy of representation in public services that this standard was adopted in Sawhney. This was a sound decision, as the adequacy of representation is what lies within the State’s subjective satisfaction. However, in Patil, the Court surprisingly adopted this standard when addressing the third question framed, which enquired if the State Backward Classes Commission was justified in describing the Maratha community as ‘backward’. There was no question of adjudging the adequacy of representation of the Marathas in State services, as this question had already been dealt with by the Gaikwad Commission. Thus, in this context, no element subjective satisfaction of the State was involved, and the Court’s application of Barium Chemicals in Patil, does not hold good.
Instead of looking at the reference made to Barium Chemicals in Sawhney, the Court in Patil would benefit if it referred to the question framed before the Court in Sawhney which enquired whether the extent of judicial review is restricted with regards to the identification of Backward Classes and the percentage of reservations made for such classes to a demonstrably perverse identification or a demonstrably unreasonable percentage. Similarly in the present case, the Court was required to analyse the scope of its judicial scrutiny of the Gaikwad Commission Report, with regards to the identification of the Marathas as a backward class. In response to this question framed in Sawhney, Justice B.P. Jeevan Reddy noted that there existed no special or particular standard of judicial scrutiny in matters which arise under Article 16(4) or 15(4) of the Indian Constitution. He further elaborated that the extent and scope of such judicial scrutiny would depend upon the nature of the right affected, the kind of subject matter, the character of the constitutional provisions applicable and so on.
When such is the precedent in this regard, it is remarkably unusual that in addressing the question of whether the State Backward Classes Commission was justified in describing the Maratha community as ‘backward’ in Patil, the Court went ahead and discussed an irrelevant, particular and narrow standard of judicial review. If we do assume, for argument’s sake, that the Barium Chemicals standard was indeed applicable, then we must embark on an inquiry as to whether this standard was implemented properly. In the next section, I shall explore the answer to this question.
The Implementation of the Barium Chemicals Standard
I have already discussed that as per Barium Chemicals, the judicial scrutiny power of the courts does not extend to reviewing the aptness or sufficiency of the grounds on the basis of which an executive authority makes its decision. The state’s decision to grant reservation to the Marathas was based on the Gaikwad Commission Report. Despite purportedly applying the Barium Chemicals standard, the Court clearly overstepped it by embarking on a very detailed factual examination of the Gaikwad Commission report. For instance, the Court makes a reference to the case of The State of Andhra Pradesh and others v. U.S.V. Balram, to justify its power to scrutinise the sufficiency of the materials collected by the Commission. This is in complete contrast to the Barium Chemicals standard which expressly disallows the Court from testing the sufficiency of such grounds.
While the acts and orders passed by a state under Article 16(4) of the Constitution do not enjoy complete immunity, the court is expected to give due deference to the decision of the executive as a co-equal in such matters. In Patil, the Court also makes a reference to the case of B.K. Pavitra v. Union of India – II (Hereinafter, “B.K. Pavitra”). In B.K. Pavitra, the question before the Court was that of the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018. This Act granted reservation in the government services on the basis of the report of the Ratna Prabha Committee. In that case, the it was held that when the Committee had carried out an elaborate exercise for collecting and analysing data in its report, and the State had subsequently formed an opinion on the basis of the same, then the Court must be wary when exercising its power of judicial review to re-evaluate any factual material on record.
In this context, it becomes important to draw attention to Justice B.P. Jeevan Reddy’s words in Sawhney. In his judgement, he laid down that in its judicial review, the court cannot reject a commission’s exercise of identifying a backward class on the basis of errors in such identification. He acknowledged the fact that such errors are not to be seen as uncommon as no report can be perfect and the court can order the concerned government to rectify these errors. When referring to these cases in Patil, the Court recognised the limitation placed by precedents on its judicial scrutiny regarding factual data and materials collected by it. Even then, the Court proceeded to evaluate the data used by the Gaikwad Commission in examining the issue of whether the data made a case for granting reservation under Article 16(4) of the Constitution.
Ignoring the warning sounded in Barium Chemicals, B.K. Pavitra and Sawhney, the Court makes elaborate calculations regarding the percentage of Maratha representation, prepares tables to undertake a comparative study of the data before it, points out computing errors in the Commission’s calculations and then proceeds to rectify them itself. For example, the Court in Patil labelled the Commission’s calculations of Maratha representation out of the posts filled by the open category as ‘wrong and erroneous’. What is surprising is that the Court proceeded to recalculate this percentage and deemed that the figures arrived by it were the ‘correct’ ones. In this process, it conferred upon itself the power to re-evaluate the factual material before it, instead of ordering the concerned government to rectify the errors found. Ironically, it does this while repeatedly stating that it has no reason to doubt the figures compiled by the Commission.
Also, as posited by the Court in B.K. Pavitra, in the context of the report prepared by the Ratna Prabha Committee –
“Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact.”
The subjective satisfaction of the State in matters of grant of representation, even if based on erroneous material, cannot lead the Court to invalidate the entire exercise of the data collection and subsequent law formation. In Patil, however, the Court declared the SEBC Act, 2018 as invalid and unconstitutional on the basis of the fact that contrary to the Commission’s findings, the Marathas were adequately represented in public services and did not constitute a ‘backward class’. The Court also laid down what test it thought relevant for application by the Commission in the latter’s data collection exercise for the analysis of whether the Marathas constituted a backward class. The Court opined that since Marathas have historically not been considered as a backward class, the Commission should have adopted a test which enquired what changed thereafter that now the community should be included within the ambit of a backward class. The Court also proclaimed that the Commission ought to have conducted a comparative analysis in this regard.
As per Barium Chemicals, the Court in its judicial review is disallowed from commenting on the aptness or relevance of the grounds upon which the subjective satisfaction of the authority is based. In violation of this standard, the Court relied on its own calculations and findings, and struck down the Act on the basis of errors it found in the Commission’s data computing. It is unclear then, why the Court made such an elaborate reference to the subjective satisfaction standard, when it eventually did not follow it.
Doing it the Right Way
From the above discussion, we can gather that the Court in Patil has not only chosen an incorrect standard of judicial review, but also incorrectly applied this incorrect standard. Then, what should have the Court done instead?
A more nuanced approach would be achieved if the Court paid heed to its own reference, and took inspiration from B.K. Pavitra. In this context, I believe that one can draw a parallel between the reports of the Ratna Prabha Committee and Gaikwad Commission, and similarly between the subsequent State-enacted legislations of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act, 2018, and the SEBC Reservation Act, 2018.
In B.K. Pavitra, the Court displayed a deferential attitude towards the data collection process undertaken by the State, and the subsequent inferences drawn by it on the basis of this data. The data in that case was collected, analysed, and commented upon by the Ratna Prabha Committee in its report. In that case, the Court recognised that there was no evidence that the report prepared by the Committee used any extraneous or irrelevant material, and that it was based on broadly accepted sampling methods. When such were the circumstances, the Court found it unviable to invalidate the report for reasons such as the availability of better methods of surveying data, which had not been used by the Committee. Thus, the Court in B.K. Pavitra concluded that on the basis of such a report, it was open to the State to enact a law for reservation. In Patil too, it was recognised by the Court that there was no such evidence of the usage of extraneous material, and the survey conducted was done as per the accepted method of conducting a sample survey. Instead of following the limitation laid down by B.K. Pavitra in this regard, the Court went on to suggest tests which the Commission should have used, as explained above. Ultimately, on the basis of its own idea of what the Commission ought to have done, the Court invalidated the conclusion reach by the Gaikwad Commission in its report.
The Court in Patil has incorrectly applied the Barium Chemicals standard of judicial review. Even in applying this standard, the Court clearly transgressed it, and arrived at a conclusion which is contrary to the well-established precedent found in B.K. Pavitra. The deferential attitude that the Court is required to display towards the decision of an executive authority in its judicial review has only been stated in words in Patil, but not followed in spirit. As laid down by the Andhra Pradesh High Court in T. Muralidhar Rao v. State Of A.P., the identification of a backward class citizens is a function of the State and the extent of judicial review of such an exercise of identification is not akin to that of appellate or revisional jurisdiction. Contrary to this principle, the Court took it upon itself to conduct an elaborate factual examination of the Gaikwad Commission Report, and proceeded to invalidate the findings of the same. Now that the Supreme Court has denied a second look to this case, one can only wonder how far-reaching and long-lasting the repercussions of its error in Patil will be.
 Tarunabh Khaitan, ‘BEYOND REASONABLENESS – A RIGOROUS STANDARD OF REVIEW FOR ARTICLE 15 INFRINGEMENT’ (2008) 50 Journal of Indian Law Institute 177.
 Philip C. Aka, ‘The Supreme Court and Affirmative Action in Public Education, with Special Reference to the Michigan Cases’ (2006) 2006 BYU Educ. & L.J. 1.
 Henry Paul Monaghan, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (1980) Harvard Law Review 296.