Day 10 Arguments – Constitution Bench

March 25 2021

Background

In 2018, the State of Maharashtra passed the Socially and Educationally Backward Classes Act, 2018 (‘SEBC Act’) to extend reservations to the Maratha community. Specifically, the State Legislative Assembly granted Marathas 16% reservations in education and public employment.

Various litigants challenged the SEBC Act before the Bombay High Court. After 40 days of oral arguments, the High Court delivered its judgment in 2018. It upheld the Act but reduced the percentage of seats reserved for Marathas to 12% in education and 13% in public employment, as per the recommendations of the Gaikwad Committee. Now, the case has moved to the Supreme Court. A three-judge Bench led by Justice Nageswara Rao heard Special Leave Petitions (SLPs) challenging the Bombay High Court’s judgment. One of the key legal issues was whether the State has the power to exceed the 50% reservation ceiling set by the Supreme Court in Indra Sawhney v. Union of India (‘Indra Sawhney’). With the introduction of the SEBC Act, over 70% of seats in Maharashtra are reserved.

The preliminary issue that came up was regarding the need to refer this case to a larger bench, as it involved substantial questions of law around the interpretation of the Constitution. After hearing both the parties, the Court on 09 September, in its brief, non-reportable order, referred the case to a larger bench. On 8 March 2021, the Constitution Bench issued notice to all 28 states. Further, the Bench framed the following six issues that would be argued in ten days of hearing:

1. Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.? 

2. Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case? 

3. Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney?  

4. Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power? 

5. Whether, States power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India? 

6. Whether, Article 342A of the Constitution abrogates States power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?

 

Intervenors Argue Caste Should no Longer be a Basis for Reservations, the 50% Limit is Necessary for Meritocracy

Mr Shiram Pingle appeared for an intervenor. He began by submitting that it is time to reconsider caste as a basis for reservation. He cited the Manusmriti, that everyone is born as a Shudra. Even if caste cannot be removed from society, it is time to remove caste-based reservations because of its politicisation. Justice Bhushan pointed out that this idea was radical, and maybe good, but it is a matter of policy in which the Court cannot interfere.

Pingle then looked at the history of reservations in Maharashtra. They had introduced reservations on an economic basis at least twice. Reservations for OBCs were also restricted to 14% or below. Then, in 1994, after Indra Sawhney, this changed. OBC reservations were increased to 32%, and economic reservations were struck down. Pingle submitted that this was erroneous. Since 34% of the State population is from the OBCs, he submitted this was excessive. Indra Sawhney required periodic review. So, he submitted that the Marathas should be given reservation under extraordinary circumstances in the short term. However, he defended the 50% limit, and asked that OBC reservations should be reviewed such that overall reservations could be taken below 50%.

Mr. VK Biju appeared before the Court on behalf of an intervenor. He said the 50% limit need not be reconsidered by a larger bench and could be dealt with under the framework of Indra Sawhney. He also said that the consequences of the SEBC Act should also be considered. This was in the context of granting reservations after protests, lack of law and order and its effect on merit. He argued this would lead to the politicisation of reservations.

Biju submitted that similar to a law of diminishing marginal utility, with increasing reservations, there is a ‘law of diminishing marginal meritocracy’. This affects people at large. For example, doctors need to be meritorious. He submitted that reservations should be on the basis of poverty instead.

 

Other Intervenors Support States’ Position on the SEBC Act and the 50% Limit

Mr. Hrishikesh Chitaley briefly pointed out that the issue of retrospective application of Article 342A that identifies SEBCs is pending before the Bombay High Court and should be left for the high court to settle.

Mr. Kaleeswaram Raj appeared for an intervenor involved in the challenge to the 103rd Amendment that introduced EWS reservations. He argued that Indra Sawhney should not be reconsidered. This rule has struck a balance. Both, those opposing economic reservations and those opposing caste-based reservations exceeding 50% had sought to rely on it. Asking the Court to consider the broader impacts of the case on that challenge, he urged them to maintain the rule.

Mr. Prashant Kenjale made a brief submission supporting the reconsideration of the 50% limit. He asked the Court to read Articles 336 and 337 which made the percentage of special provisions for Anglo-Indians explicit. He submitted that the Constituent Assembly and Parliament had explicit percentages where required. The Court cannot imply a percentage limit where it does not exist.

Mr. Akash Kakade appeared for an intervenor. He asked the Court to also take notice of a TISS survey on farmer suicides in Maharashtra: 65.8% of suicides were by Marathas. He urged that this constituted exceptional circumstances.

Mr. Ashok Arora urged the Court to allow all of those who had already been selected but not officially appointed under the SEBC quota, to be appointed. Senior Advocate Paramjit Patwalia backed this request on behalf of the State of Maharashtra.

 

Final States’ Counsel Submit Their Positions

Mr. Pradeep Misra for the State of Uttar Pradesh submitted that they were in full agreement with the Union of India. Ms. Diksha Rai for the State of Assam agreed that the 50% limit should be reconsidered. Assam currently had 59% reservations. She also asked that the 102nd Amendment should be interpreted in a manner that maintained States’ powers of identification of the backward classes.

 

Karande Appears on Behalf of Petitioner Challenging the 102nd Amendment

Mr. Amol Karande appeared on behalf of petitioners who had challenged the 102nd Amendment Act as ultra vires. Firstly, this did not comply with the proviso in Article 368. This requires amendments that affect States rights to be ratified by half the States. In the present case, this procedure was not met. Further,  Article 366(26c) introduced by the Amendment sought to change the definition of SEBC. It appeared to restrict it to the Central List prepared by the President or Parliament. This indirectly took power from States which it previously had. Indra Sawhney had decided that States had the power to identify OBCs and SEBCs under the Constitution.

Secondly, it also violated the principle of federalism which was part of the basic structure of the Constitution. Karande pointed out that this was affirmed in Kesavananda Bharati v Union of India. For the reasons above, the 102nd Amendment affected federalism and could be struck down.

 

Petitioners’ Advocates Submit Rejoinders

Senior Advocate Shyam Divan submitted a rejoinder on the importance of 9-judge benches. He stressed that there were 16 such benches and none of them had been overruled. He said this was for good reason as long-standing rules should not be reconsidered easily. He also cited the Central Board of Dawoodi Bohras v State of Maharashtra which notes that a judgment can be doubted only by a bench of at least equal size. So, the 5-judge bench cannot doubt Indra Sawhney which is a 9-judge bench. He also asked the Court to consider that if the 50% limit was removed, it would lead to a slippery slope.

Senior Advocate Pradeep Sancheti responded to arguments made on the basis of the Gaikwad Commission Report. He cited data on Maratha representation in high political, economic, educational and other positions. Justice Bhushan pointed out that this might indicate not just political dominance, but dominance in multiple fields.

Sancheti also argued that arguments that compare the representation of Marathas to their percentage in the State population used a metric of ‘proportionality’ rather than ‘adequacy’. Article 16(4) uses the latter. He also pointed out that the respondents’ data on the proportion of Marathas in the State might be exaggerated. He cited other reports to indicate that the Rane Commission’s figures of 30% were biased because they took mostly rural figures. It was likely to be below 26%. Representation in State services was around 19%, which was adequate.

He was followed by Senior Advocate Gopal Sankaranarayan. He first cited the case of Ashok Kumar Thakur, where the Court had pointed out that sample surveys may not adequately find backwardness based on social identity.

He then addressed the challenge to the 102nd Amendment. He pointed out a challenge based on the basic structure of the Constitution requires the Amendment to be ‘so extreme’ such that it disturbs the balance between the Centre and the States. Sankaranarayan advanced the premise that the identification of the SCs and STs had always remained with the Centre. This 102nd Amendment had thus ‘restored the balance’ of identifying SEBCs and OBCs as well.

The bench pointed out that the Constitution makers would have envisioned a separation of powers for identifying these different communities. That separation was being undone by the Amendment. Sankaranarayan agreed, but pointed out that it would still not violate the basic feature of federalism. The provision was enacted, in Sankaranrayan’s guess, to ensure that there is a universal list that is not subject to ‘political ransom’ as is the case for Marathas or Jats earlier. He also said the basic structure doctrine should not be used to ‘paralyse’ Parliament.

Sankaranarayan then addressed arguments that Indra Sawhney had no majority, or the 50% limit in it was obiter. He notified the bench that he had submitted a chart of 50 cases, with 70 judges’ opinions, in the Supreme Court and High Court that had applied the 50% rule. The principle of precedent, or ‘stare decisis’, required that this should not be reconsidered. Anecdotally, he also referred to the fact that the first instance of reservations was also in Maharashtra. In 1902, Shahuji Maharaj had introduced it in Kolhapur. There too, it was limited to 50%.

He argued that the analysis about whether Article 15(4) and 16(4) were ‘exceptions’ were not relevant to the 50% limit. That analysis was about the question of whether or not reservations prima facie violated Article 15(1) and 16(1). When the Court said they were not exceptions, they had held they did not violate the first clauses of their respective articles. This change had no effect on the 50% rule. Concluding, he asked the bench to direct the Union to notify a list of SEBCs as required by the 102nd Amendment.

Senior Advocate Arvind Datar then submitted his points in rejoinder. He urged that the Directive Principles of State Policy (DPSPs) were given effect by Articles 15(4) and 16(4) already. Indra Sawhney was not wrong to interpret the Articles without reference to the DPSPs. He also pointed out that the main arguments from the respondents did not centre around the SEBC Act and the Bombay HC judgment. The primary question was about how the law as it stood applied to these, not about reconsidering the law.

He also justified the choice of 50% as the limit. He said this was necessary because it was a ‘special provision’. He also argued that this limit was now a part of the Constitution. When the 76th Constitutional Amendment sought to protect Tamil Nadu’s 69% reservations from judicial review, the Parliament passed it knowing it violated the 50% limit. There was no other reason for the Amendment, and Parliament seemed to be aware the limit was now part of the Constitution.

Finally, he submitted that a reference to the TMA Pai judgment was misplaced. That case had set aside a 50% limit on seats reserved for minority students in minority institutions. But that did not deal with special provisions, it dealt with a right of minority institutions, and different considerations applied.