K KUMARDHAN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a public interest litigation filed by the petitioner who belongs to the Manipuri community and who speaks Manipuri language. The relevant facts briefly are that by a notification dated 27-11-75, the Government of Assam published a list of Other Backward Classes in the State of Assam who would be entitled to reservation in public services. Against serial 13 of the said list published by the notification dated 27-11-75 "Manipuri including Manipuri Brahmins and Manipuri Muslims" were mentioned as an Other Backward Class. On 16-11-92, the judgment of the Supreme Court in Indra Sawhney v. Union of India was delivered. B.P. Jeevan Reddy, J. delivering the majority judgment held of the judgment as reported in AIR 1993 SC 477 that there ought to be a permanent body, in the nature of a Commission or Tribunal, to which complaints of wrong inclusion or non-inclusion of groups, classes and sections in the lists of Other Backward Classes could be made and which would tender its advice/opinion to the Government, and accordingly directed that such body be constituted both at Central level and at the level of the States within four months. Pursuant to the said directions, at the Central level the National Commission for Backward Classes Act, 1993 was made by the Parliament under which the Central Government was to constitute a body to be known as National Commission for Backward Classes to examine the requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such list and tender such advice to the Central Government as it deemed appropriate. Similarly, at the State level, the Assam Backward Classes Commission Act, 1993 (for short, "the Assam Act")was enacted by the Assam Legislative Assembly under which the Assam Backward Classes Commission was to be constituted to examine the requests for inclusion of any class or classes of citizens as backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Government as it deemed appropriate. Under the said Assam Act, the Assam Backward Classes Commission was constituted and the said Commission examined a complaint relating to non-inclusion of 'Bishnupriya Manipuri' in serial-13 of the list of Other Backward Classes as notified by notification dated 27-11-75 of the Government of Assam and by its order dated 29-9-95 in Case No. 1/94 recommended that serial-13 of the said list be amended so as to include Bishnupriya Manipuri as part of the Manipuri community. On the said recommendation of the Assam Backward Classes Commission, the Government of Assam in the Department of Welfare of Plains Tribes and Backward Classes issued a corrigendum dated 18-3-96 to serial-13 of the list as notified by the notification dated 27-11-75 stating that serial No. 13 would read as follows :"Manipuri including Bishnupriya Manipuri, Manipuri Brahmins and Manipuri Muslims."Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution praying for a declaration that the Assam Act is unconstitutional and praying for an order quashing the aforesaid corrigendum dated 18-3-96 issued by the Government of Assam as well as the order dated 29-9-95 of the Assam Backward Classes Commission in case No. 1/94. The petitioner has further prayed for a declaration that Manipuri language or community is in no way connected with Bishnupriya Manipuri community and for a direction restraining the respondents to use the word 'Manipuri' as prefix or suffix to the word 'Bishnupriya' for any purpose and for restraining the State of Assam to include Bishnupriya Manipuri or Bishnupriya in serial 13 of the list of the Other Backward Classes as notified by the notification dated 27-11-75.

(2.) At the hearing, Mr. B. K. Das, learned counsel for the petitioner, submitted that the power to legislate relating to identification of backward classes is with the Union Parliament and not with the State Legislature. He contended that Entry 41 of List-II of the Seventh Schedule to the Constitution empowered a State Legislature to make a law relating to State Public Services but the impugned Assam Act is not a legislation on public services of the State of Assam. It is a legislation for identification of backward classes and as no Entry in List-II or List-III of the Seventh Schedule to the Constitution relates to identification of backward classes, law relating to identification of backward classes can only be made by the Union Parliament in exercise of its residuary power under Article 248 of the Constitution or under Entry-97 of List-I of the Seventh Schedule to the Constitution. Mr. Das argued in the alternative that para-117 of the majority judgment of B.P. Jeevan Reddy, J. as reported in AIR 1993 SC 477 would show that the Backward Classes Commission was to be created under Article 16 (4) read with Article 340 of the Constitution for the purpose of identifying and specifying the backward classes of citizens in whose favour reservations were to be provided and under Article 340 of the Constitution it is the President of India who has the power to appoint a Commission to investigate the conditions of backward classes and not the State Legislature of a State. The impugned Assam Act has been made by the State Legislature for constituting a Commission for identifying the backward classes contrary to the directions of the Supreme Court in the aforesaid majority judgment of the Supreme Court in the case of Indra Sawhney v. Union of India, (AIR 1993 SC 477) (supra) and the provisions of Article 340 of the Constitution. Mr. Das further contended that in any case the Union Parliament has already made the National Commission for Backward Classes Act, 1993, and the said Act makes detailed provisions with regard to constitution of National Commission for Backward Classes by the Central Government and for examination of requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. The said Central Act made by the Union Parliament therefore covers the entire field relating to identification of backward classes and relating toinclusion of any class of citizens as a backward class in the lists as well as their over-inclusion or under-inclusion in such lists. According to Mr. Das, since the aforesaid Central Act occupies the entire field for identification of backward classes and their inclusion, over-inclusion or under-inclusion in the lists, the State Legislature cannot make a law on the very same field and the impugned Assam Act is repugnant to the aforesaid Central Act. He submitted that Article 254 of the Constitution made it clear that a law made by the Legislature of a State which was repugnant to the provision of law made by the Union Parliament was void to the extent of such repugnancy. Mr. M. Singh, learned counsel appearing for respondent No. 5 adopted the aforesaid submissions.

(3.) Mr. P. G. Barua, learned Advocate General, State of Assam, on the other hand, submitted that under Entry-41 of List-II of the Seventh Schedule to the Constitution, the State Legislature has exclusive power to make law relating to State Public Services. He also referred to Entry-45 of List-III of the Seventh Schedule to the Constitution whereunder both the State Legislatures and the Union Parliament have concurrent power to make law relating to enquiries and statistics for the purpose of any of the matters specified in List-II or List-III of the Seventh Schedule to the Constitution. He argued that a reading of the impugned Assam Act would show that the domain and the purpose of the Act was reservation in State Public Services and for the purpose of such reservation a Commission for Backward Classes was to be constituted to enquire and find out as to which were the backward classes which would be granted reservation in the public services of the State. According to Mr. Barua, learned Advocate General, the impugned Assam Act is really an Act made by the State Legislature in exercise of its power under Entry-41 of List-II read with Entry-45 of List-III of the Seventh Schedule to the Constitution and cannot be held to be ultra vires. Mr. N. Dutta and Mr. B. Singha, learned counsel appearing for respondent No. 9, adopted the aforesaid submissions of Mr. Barua.