Day 2 Arguments – Constitution Bench

March 16th 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 (1992). 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 September 9th, in its brief, non-reportable order, referred the case to a larger bench. On March 8th 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?

 

Indra Sawhney Must Not Be Revisited, Argued Arvind Datar

In today’s hearing, Sr. Adv. Arvind Datar argued on issue 1: the question of revisiting Indra Sawhney. Further, he noted that the Maratha Community was not a backward one.

Indra Sawhney is a nine-judge bench precedent. As per Datar’s research, no subsequent judgment has criticised or raised concerns regarding its correctness. The Indra Sawhney judgment was a result of deep deliberation. Eight of the nine judges subscribed to the 50% ceiling limit rule. This limit was applied in around ten High Court decisions to strike down laws. And four Constitution Bench Supreme Court decisions upheld and reiterated Indra Sawhney.

Moreover, if the Court has to go into the correctness of this precedent, it must set up a larger bench i.e. an eleven judge bench. And the threshold to refer a case to an eleven judge bench must be compelling and grave.

Datar invoked Ambedkar to point that if reservations of more than 50% is provided, it would violate the principle of equality. Several governments have been introducing reservation right before the Model Code of Conduct of Elections is in place. For example, earlier this year, the Tamil Nadu Government provided a 10.5% reservation for Vanniya Kula Kshatriyar. Given how politically motivated reservation has become, Indra Sawhney must not be revisited.

Then, he submitted that the 50% rule should continue to apply and that neither the Act nor the Gaikwad Commission report justified ‘exceptional circumstances’ to break from the rule.

In Indra Sawhney, the Supreme Court had laid down that there was a limit of reservations of 50%. The exceptions to this were when there were ‘extraordinary situation’ and ‘exceptional circumstance. Datar submitted that the Court in Sawhney had envisioned communities in ‘far-flung remote areas’ which were not in the national mainstream. The Gaikwad committee’s report made no mention of any far-flung areas. Instead, it relied on the large proportion of Marathas in the State population (30%) that were ‘backward’ to justify that it was an exceptional circumstance.

Various commissions had previously noted Marathas as forward communities. Justice Jeevan Reddy in Indra Sawhney also cited the Mandal Commission report that noted the proportion of communities which had reservation was 74.56% of the total population. Still, the Court there had laid down a 50% limit. Here, having it for 85% of the population would be untenable, submitted Datar.

Datar also cited a State Commission of five judges of the Bombay High Court. After, public hearings, the Court concluded that Marathas were a ‘socially prestigious’ community, and not comparable to the Kunbis (OBC) as had been argued before the Commission.

In light of this, Datar argued while the ‘nation has progressed, how can 30% of Maharashtra have gone backwards?’ State Commissions like the Gaikwad Commission may differ, but they may also be wrong and earlier Commissions were never challenged or reviewed if they were wrong.

In Ram Singh v Union of India, both Articles 15(4) and 16(4) of the Constitution were recognised as important bases of affirmative action. The case noted that inclusion should only be of the most ‘distressed’ rather than ‘politically organised classes’.

 

Marathas Are a Politically Organised and Dominant Political Class, Not Backward in Constitutional Sense: Divan Submitted

Senior Advocate Shyam Divan then continued the argument on behalf of his clients, two medical students.

He began by citing the 2014 Bombay HC judgment against an earlier similar Ordinance. 19 Chief Ministers of the State were from the Maratha community. So were 22 out of 39 general category MPs from Maharashtra. Similarly, high percentages of the civil services and other positions were occupied by the community. Ownership of land and leadership of co-operatives and companies were also dominated by the community.

Divan also cited the 11 criteria used by the Mandal Commission which included social, educational and economic criteria, noting that Marathas were regarded as a forward class in its report.

Divan thus suggested that the Gaikwad committee was ‘deeply flawed’. It failed to recognise that Marathas are a politically organised and dominant political class, that ‘they are not backward in any constitutional sense’. Some findings the commission cited were dismissed. The agrarian crisis which had impacted Marathas who worked in agriculture was not a social or educational criteria or one that specifically affected one community. Divan also said the high proportion of Marathas among dabbawalas was not good evidence, since dabbawalas were part of an ‘efficient industry’. Practices such as no widow remarriage or inter-caste marriages were not a sign of backwardness, but conservatism said, Divan. A surveyed impression of inferiority also would not pass constitutional muster.

Divan then argued about medical admissions in particular. He noted that for post-graduate students, this would go up to 72% of reservations. He submitted that people who already have a graduate MBBS degree cannot be considered ‘socially or educationally backward’. Alternatively, he submitted that some post-graduate degrees were the ‘end of the road’ in education. They were the final medical specialisation, and that should be based on ‘merit and merit alone’.

Moving on to the issue of holding the 50% rule, Divan relied on the principles of the rule of law and legal certainty. While the bench had a dissent on some issues, all 9 judges in Indra Sawhney agreed to the 50% limit. Divan submitted a list of cases that had applied this rule, noting a strong precedent had developed. One of the few exceptions acknowledged was for panchayats in Scheduled Areas to protect tribal interests.

Finally, Divan briefly began his submissions on the 102nd Constitution Amendment Act, 2018. He laid out the changes brought by the Act. It required Social and Educationally Backward Classes to be defined by a specific procedure that involved either Parliamentary approval or Presidential notification. He will continue his submissions on this point tomorrow.