Day 12 Admission Arguments

July 15th 2020

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 is hearing Special Leave Petitions (SLPs) challenging the Bombay High Court’s judgment. One of the key legal issues is whether the State has the power to exceed the 50% reservation ceiling set by the Supreme Court in Indra Sawhney. With the introduction of the SEBC Act, over 70% of seats in Maharashtra are reserved.

 

No interim relief

In the previous hearing, Justice N. Rao’s Bench listed the case to be heard today on the question of interim relief. Various parties were holding on to the slim hope that the Court would stay (temporarily halt) portions of the SEBC Act. In today’s hearing however, Justice N. Rao clearly established that the Court would not issue any interim orders. It will hear the case in full and then deliver its verdict.

Justice Rao pointed out that the Supreme Court had already denied several pleas for interim relief. He concluded that it would not be fruitful to rehear the counsels on the issue. He didn’t entertain Advocate Bhatnagar’s attempts to convince the Court to consider interim orders with regards to on-going Post-Graduate admissions.

 

Embracing video conferencing

Recognising the urgency of the matter, Justice Nageswara Rao stated that the Bench was ready to begin hearing final arguments on a day-to-day basis, as early as next week. He clarified that the Bench would hear arguments via video conference.

Several counsels opposed conducting final arguments online. They expressed that the technology hindered their ability to argue effectively. For example, Senior Advocate M. Rohatgi pointed out that it took him 30 minutes to log in today. Senior Advocate G. Sankaranarayanan submitted that several senior counsels have been dropped from stream, while presenting arguments.

Advocate Jadhav went a step further. He submitted that the Chief Justice had agreed to not commence final arguments over video conference, without first having obtained the consent of all arguing counsels.

While Justice Rao acknowledged these submissions, he stressed that the case required urgent attention. He noted that 70,000 posts are to be filled on the basis of the SEBC Act. Observing that no one knows when the coronavirus will subside, he held that the Bench will hear the case via video-conference over the course of a week.

 

What are the key legal issues?

While today’s hearing was primarily procedural, Senior Advocate Arvind Datar sought to clarify the key legal issue(s) before the Bench. He submitted that the central question revolves around the precedent set by Indra Sawhney. What types of extraordinary circumstances can justify a state legislature drafting a reservation policy that exceeds the 50% ceiling? Sr. Adv. Datar observed that upto 73% of seats are now reserved in Maharashtra.

Sr. Adv. Kapil Sibal added that the Court will have to consider the effect of reservations for economically weaker sections (EWS). In 2019, the Union amended the Constitution to introduce EWS reservations. The amendment is currently undergoing a challenge before a three-judge Bench led by the Chief Justice. Sr. Adv. Sibal implied that the EWS quota places further stress on the 50% ceiling.

Returning to issue of interim relief, Sr. Adv. Shyam Divan asserted that the Bench should prima facie apply the nine-judge Bench judgment and stay the operation of the SEBC. He reiterated that the SEBC clearly granted reservations beyond the 50% ceiling. He reasoned that the Bench, by not staying the Act’s operation, was allowing the State to prima facie violate a nine-judge Bench of the Supreme Court.

 

Final arguments to commence on July 27th

Noting the urgency of the matter, Justice Rao said that the Bench was ready to start hearing the matter as early as next week. While some counsels submitted that they could begin next week, several pleaded for more time, including Sr. Advs. Sibal and Rohatgi.

After some deliberation, the Bench listed the case for final arguments on July 27th. It directed all counsels to confer with each other and submit how much time each counsel would require to argue. Justice Rao asked them to clarify the order in which they will present arguments.

Sr. Adv. Narasimha requested the Court to appoint a lawyer to organise all the written submissions of the various parties. Justice Rao directed Sr. Adv. Narasimha to do so. At which point, Sr. Adv. Datar submitted that he had filed exhaustive written submissions already.

Stressing the importance of well-organised submissions, Justice Rao observed that if all the counsels submitted cohesive written submissions, then the Bench would require less than five days to hear arguments. He even said that arguments could conclude in three days and that the Bench was willing to sit a little past 4.30pm, if necessary.

Advocate Shriram Pingle observed that the Bombay High Court had heard the case for 40 days. Justice Rao responded by asserting that the length of a hearing does not determine the quality of justice delivered. He drew attention to the fact that the UK and US Supreme Courts hear substantial constitutional questions in 1-2 days.

With this the hearing concluded. Counsels must submit short written notes by July 22nd.

 

Update (25.07.2020): it is possible the Court will only hear arguments on interim relief on 27 July.