Day 2 Arguments

August 26th 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 v Union of India. With the introduction of the SEBC Act, over 70% of seats in Maharashtra are reserved.

On July 27th, several petitions were filed that sought to refer Indra Sawhney to an 11-judge bench. This precedent caps reservations at 50% and is crucial to adjudicate the claims in this case. In the previous hearing, the Court heard arguments in favour of referring the case to a larger bench. Today, arguments continued on the question of reference.

 

Submission by Mukul Rohatgi

Sr. Adv. Mukul Rohatgi began his arguments first. He pointed out that the Bombay High Court judgment had held that the ‘far flung areas’ exception to the 50% ceiling limit as established in Indra Sawhney, was merely illustrative. There could be multiple exceptional circumstances in which the ceiling could be surpassed. With respect to the issue surrounding the 102nd Amendment, which set up National Commission of Backward Classes (NCBC), the judgment noted that it did not take away the States’ powers on reservation.

Rohatgi pointed out that the challenge to EWS reservation via the 103rd Constitutional Amendment was already before the Court. The Amendment broke the 50% ceiling and was referred to a Constitution Bench. If one argued that the 103rd Amendment in effect took away the 50% ceiling limit on the reservation, then the Court would have to set up a constitutional bench with more than 9 judges, he noted.

While Indra Sawhney was decided entirely on the content of official Office Memorandums/circulars, in the present case the Court is confronted with issues around constitutional provisions. The Court would have to determine if there exists any conflict between Articles 15 (4) and 15 (6).  Moreover, the present case also brought out the question of whether Articles 342A and 338B could infringe the fundamental rights under Articles 15 and 16.

Lastly, he read out the order of the Court in the EWS Challenge case that referred the case to a Constitution Bench. By drawing parallels to the current case, he noted that as both cases involved similar constitutional issues, the current case ought to be referred to a constitution bench.

 

Submission by Kapil Sibal

Sr. Adv. Kapil Sibal at the outset argued that in Indra Sawhney, the court rejected reservation on the basis of economic backwardness as it would violate the basic structure of the Constitution. Therefore, the current case would have to be referred to an 11-judge bench.

Next, he sought to distinguish between Articles 16 (4) and 15. In Indra Sawhney, the Court had to interpret Article 16 (4) only so far as it related to ‘employment’. During the time Indra Sawhney was decided, the percentage of the population from backward communities was 52%; currently it is 85%. In order to work towards uplifting the backward communities, the focus must not only be on ‘employment’ but on ‘empowerment’. Article 15 in the past has not been invoked to justify ‘empowerment’ of backward communities.

Moreover, around 28 states in India have exceeded the 50% ceiling limit of reservation. This fact itself would constitute a ‘substantial question of law’ and would merit the setting up of a larger bench. Sibal invoked State of Andhra Pradesh v T. Muralidhar Rao to illustrate that the Court had referred the issue of allowing a breach of 50% ceiling limit to a larger bench.

 

Submission by P.S. Narsimha

In his brief submission, Narsimha pointed the Court to the constitutional value of ‘fraternity’. He noted that fraternity was a crucial strand of the Constitution and past judgments on reservation overlook this aspect. While adjudicating constitutional provisions on matters relating to equality, it was imperative to consider the value of fraternity.

 

Submission by C.U. Singh

C.U. Singh’s first argument was based on the requirement under Article 145 (3) to refer a case to a constitution bench: such referral was not predicated on the presence of a ‘conflict’ between past judgments; instead, it depended on the existence of a ‘substantial question’ on the interpretation of the Constitution. As argued by the previous advocates, the present case brought forth such ‘substantial questions’.

Today’s hearing concluded with Singh’s submissions. The Court has listed the case for 28 August, when Sr. Adv. Abhishek Singhvi and Sr. Adv. Paramjit Singh Patwalia will continue arguing in favour of the reference to a larger bench.