Day 3 Arguments

August 28th 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.

 

Counsels Arguing For The Reference

Submissions by Sr. Adv. Abhishek Singhvi

Sr. Adv. Abhishek Singhvi pointing to paragraphs 4, 11 and 16 of the EWS reference order, noted that the core issue was around the 50% ceiling limit. This was considered as a ‘substantial question of law’. Similarly, in the present case, the Gaikwad Committee has favoured surpassing the 50% limit. Hence, the current case must be referred to a larger bench.

Further, he argued that Indra Sawhney revolved around Article 16 (4). However, in the current case Articles 15(4), 15(5), 338, 342A are at play. No past precedents have dealt with the 50% ceiling question in relation to Articles 15 (4) and 15 (5). The focus in Article 16 (4) is on ‘adequate representation’, which was reflected in the judgment of Indra Sawhney. The case did not deal with ‘advancement’ of specific communities, which is the focus of Article 15(4).

Pointing to the August 27th judgment of a Constitution Bench, which referred E.V. Chinnaiah to a larger bench, Singhvi noted that this reference order revolved around similar legal issues on Articles 341 and 342. While one might pick nuances and points of difference, the larger legal questions remain similar to the present case. Hence, a reference to a Constitution Bench would best settle inter-related and inter-linked questions on reservation.

 

Submission by Mr. P.S. Patwalia

Adv. P.S. Patwalia relied on the EWS reference and pointed out that core question in that case was regarding the ‘strictness of the 50% rule’. Referring to Sr. Adv. Arvind Datar’s arguments in this case before the Bombay High Court, he noted that Datar’s focal argument also revolved around the 50% rule. Hence, the current case should be referred to a Constitution Bench.

Next, the E.V. Chinnaiah referral order, dealt with the interpretation of Articles 338B and 342A and recognised the need to refer constitutional questions around it to a larger bench. The current case too, posed similar issues.

 

Submission by Mr. Rafique Dada

Adv. Rafique Dada relied on paragraph number 49 of the E.V. Chinnaiah referral order to highlight that the Court had looked into the ‘federal structure of the Constitution’. The order went into the role and prerogative of States in providing reservations. Dada further noted that since the petitioners in the present case have brought out a basic structure challenge against the SEBC Act, one of the key issues would be analysing the 50% ceiling limit vis-à-vis the basic structure doctrine.

 

Submission by Mr. Sudhanshu Choudhari

Adv. Sudhanshu Choudhari relied on B. Archana Reddy v. State of Andhra Pradesh where an Andhra Pradesh High Court judgment was appealed through a Special Leave Petition. In this case the High Court had held that a similar state legislation which had exceeded the 50% limit was unconstitutional. The Supreme Court had referred the appeal to a Constitution Bench.

 

Counsels Arguing Against the Reference

Submission by Sr. Adv. Arvind Datar

Sr. Adv. Arvind Datar argued that as per the proviso to Article 145 (3), a reference to a Constitution Bench can be made only if it is ‘necessary’ to decide a substantial question of law. The applicants seeking a reference to a Constitution Bench were being premature. He noted that it was not the appropriate stage to decide on the reference: The Court must hear arguments on all issues before deciding on the reference question.

The Gaikwad Commission Report’s recommendations, which surpass the 50% limit, recognised that it was fell under the ‘exceptional circumstances’ category carved out by Indra Sawhney. Moreover, during the hearings before the High Court and the Supreme Court, the applicants did not raise the issue of reference to a Constitution Bench. Mr. Datar believed that the applicants were making this argument now as a strategy to delay the proceedings.

Datar refuted the argument made by Sibal about 28 states having reservations of more than the 50% limit. He noted that only Tamil Nadu and Rajasthan have surpassed the 50% limit in providing for reservation and the laws of these states were under challenge. Other states that have crossed the 50% ceiling, did so as per the 103rd Amendment to the Constitution – to give effect to reservations for Economically Weaker Sections. Further, Indra Sawhney prohibited EWS reservations under Articles 16 (1) and 16 (4). When this position was altered through the 103rd Amendment, different constitutional issues arose. Unlike Indra Sawhney, the current case is about reservations for Socially and Educationally Backward Classes (‘SEBC’) under Articles 15 (4) and 16 (4).

Datar strove to distinguish the E.V. Chinnaiah reference to a larger bench from the current case. He pointed out that Chinnaiah judgment revolved around reservation for Scheduled Castes and Scheduled Tribes; the current case, however, was about SEBC.

In Ram Singh v Union of India, a two-judge bench decided on the validity of providing reservations for the Jat community. In that case, there was no argument for reference to a Constitution bench.

Datar concluded by noting that if the State of Maharashtra believes that Marathas are a backward community and needed to be provided with reservation, the State could do so within the 50% limit. The crucial issue that needs to be focused in the current case is whether the ‘extraordinary circumstances’ that merit crossing the 50% ceiling limit, as laid down by Indra Sawhney, exist in the current case.