Day 3 Arguments – Constitution Bench

Divan submits that the Constitution No Longer Allows States to Categorise SEBCs

Shyam Divan continued his argument on The Constitution (One Hundred and Second Amendment) Act, 2018. He suggested that the Constitutional scheme no longer allowed for States to categorise a community as a Socially and Educationally Backward Class (‘SEBC’). States may make other provisions for SEBC communities, but they cannot change the categorisation.

The Constitutional Amendment inserted three new provisions.  Article 366(26C) defines SEBC as those communities ‘deemed’ to be so under Article 342A. This empowered the President and the Parliament to amend the SEBC list. Article 338B gives Constitutional status to the National Commission for Backward Classes (NCBC).

Divan submitted that the key Article 342A was inserted in sequence after Articles 341 and 342 which gave powers to identify SC/ST communities. The inserted article almost mirrors the earlier ones. These other Articles provide for a single list which only the Central Government or Parliament can amend. Therefore, since the language of these Articles is the same, it was argued the rules must be similarly applied.

Justice Bhushan raised the issue of why Article 342A (2) contained the word ‘Central List’ while the other Articles with similar language did not. The Bench pointed out that the Bombay HC had ruled that the use of this phrase was to maintain the old regime. Under this Backward Classes could be identified by both the State and the Centre, following the directions in Indra Sawhney. Further, they noted that if the status quo is being changed, then there must be a clear indication of it.

Divan attempted to reconcile this by saying that the State Commissions do not stand repealed- their statutory role will continue. He said that ‘identification’ has more than one purpose. It is either about adding to the Central List which the amendment no longer allowed the State Commissions to undertake. Or it is about the power to delete or ‘review’ entries in the old State list. Divan submitted that the latter power is still held by the State Commissions and Governments.

Sankaranarayan Elucidates the Effect of the 102nd Amendment Act and the Role of ‘External Aids’ in Interpretation

The Court then called upon Senior Advocate Gopal Sankaranarayan to address their questions on the 102nd Constitutional Amendment Act. He noted that ‘SEBC’ was defined for the first time through this Amendment. He also submitted that despite Indra Sawhney noting a difference between ‘SEBC’ and ‘OBC’, in practice, both were treated as one and the same.

On the question of the phrase ‘Central List’ in the Article, Sankaranarayan argued that it should be read in the context of other provisions. It may have been used to emphasise that only a Central List would continue. Other provisions for SCs/STs did not use this phrase because they had never had separate lists. Here, Sankaranarayan argued that there was a need to clarify that only one list would continue. Article 366(26C), he said, is unequivocal about the fact that SEBC means only what Article 342A says it means. There is no room for the old scheme. Article 388B also gives the NCBC powers of supervision over State laws and policies. So, the Amendment clearly envisions a reduced role for States.

Judges pointed out that if this was true, since there was no Central List yet, there were no protections for any SEBC or OBC community. Sankaranarayan agreed that this was the logical conclusion. However, he urged that this was not the outcome he would prefer. Alternative solutions that reconciled these provisions were proposed. One was that State Commissions could not add or remove communities from the SEBC List, but could determine prioritisation and quantification among communities on the list. Another was that until the Central List was made, the old scheme might continue.

Sankaranarayan also considered the Rajya Sabha’s Select Committee Report on the Amendment. The Report noted that the Ministry had assured them the Amendment would not take power away from the State Commissions for Backward Classes. Sankaranarayan pointed out that while this was true, multiple members of the Committee had also dissented on this point. They had concerns that State powers would be reduced by the passage of the Amendment.

However, he suggested that this Report was an ‘external aid’. Such resources could only be used to interpret provisions when there was ambiguity. His primary submission was that there was no such ambiguity. Even if there was, he submitted that this Report could not be used as an external aid. In Ashwini Kumar Ghose v Arabinda Bose, the Court had particularly noted that in a bicameral legislature, one House may disagree with another. This particular report was from the Rajya Sabha, after the Bill had already passed the Lok Sabha. The report was also produced by only a few of the members of the House, and not the whole House. Due to this, the report ought not to be relied on, submitted Sankaranarayan.

Further, he noted that these aids were used not to interpret the provision but to determine the aim or purpose of the enacting legislation. Addressing the respondent’s arguments that this Constitutional Amendment undermined federalism, Sankaranarayan suggested that this was not the aim of the Act. The aim was to create a uniform list of SEBCs that was safe from ‘social vagaries’ that multiple lists might be prone to.

Senior Advocate Siddharth Bhatnagar also briefly addressed the Court. He agreed with Divan’s interpretation of the phrase ‘Central List’. He also reiterated that even if ‘OBC’ and ‘SEBC’ were constitutionally different terms, the 50% limit should apply to both.

Sancheti Begins Submissions on the Gaikwad Committee’s Collection and Analysis of Data

Finally, Senior Advocate Pradeep Sancheti began to address the Court on whether the data backed the claim for Marathas’ SEBC status. He highlighted that various cases had required that quantitative data be collected before a community was granted special benefits. The analysis of the factors based on which it was granted was open to judicial review (M Nagraj v Union of India).

First, Sancheti highlighted the fact that 6 Commissions had previously held Marathas to be a ‘forward’ class. The Rane Commission was the only one that had found otherwise. In 2014, the Bombay HC had noted that this Commission was flawed. It had surveyed 4 lakh people and found only 1-2% SC/STs when they were actually more than 21% of the State population.

The Gaikwad Commission, on which the challenged SEBC Act is based, surveyed only 43,000 people. This was only 0.2% of the State’s 12 crore people. Further only 950 of these were from urban areas, out of an urban population of 5 crores. Sancheti also noted that 4 districts had no surveyed people. The city of Mumbai was also not surveyed. This was particularly flawed since Mumbai was not only large but an educational and economic hub.

The Court adjourned for the day, with Sancheti scheduled to continue his arguments tomorrow.