Day 4 Arguments

September 1st 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.

 

Submissions by Sr. Adv. Mukul Rohatgi

Sr. Adv. Mukul Rohatgi noted that the Mandal Commission sought a periodic review of reservations in India every two-three decades. In this context, firm and absolute application of the 50% ceiling limit as laid down by Indra Sawhney would not be justified. Moreover, Indra Sawhney revolved around Articles 15 (4) and 16 (4) – it did not delve into Articles 15 (5), 15 (6), and Articles 16 (5), 16 (6). Additionally, the case did not take into account the 102nd amendment to the Constitution.

The Constitution Bench must first determine the validity of the 103rd amendment and the issue of 50% ceiling limit before examining the merits of this case. There is no precedent which analyses the interaction of the constitutional amendment with Articles 14, 15 and 16. Since the E.V. Chinnaiah was referred to the Constitution Bench and similar constitutional issues arise in the present case, it must be tagged together.

Next, provision to Article 145 (3) does not place any restrictions on the Court’s powers to refer a case to a larger bench: it, in fact, expands the powers. The Court does not have to hear the matter before deciding on the question of reference: The Court could decide to refer a case at first glance while issuing notice to the parties. Concurring with Sibal’s earlier argument, Rohatgi pointed out that most of the States in India have crossed the 50% ceiling limit to provide reservations. Even the Constitution has passed this limit. In this light, the Court, through a Constitution Bench must probe this issue.

Lastly, he highlighted that the Court must appreciate the dynamic social reality of caste: it is not the only wat to assess backwardness, other factors including poverty, creamy layer exception and sub-classification within groups must be taken into account.

 

Submissions by Sr. Adv. Kapil Sibal

Sr. Adv. Kapil Sibal highlighted that there was a difference between the constituent power and legislative power to determine the 50% ceiling limit. The larger question is whether this limit can be surpassed either by a statute or the Constitution?

Indra Sawhney does not hold good anymore. In paragraph 799 of the judgment, it specifically disallowed reservations based on economic indicator: the 103rd amendment, by introducing EWS, has explicitly overturned the judgment.

The final question that the Court needs to determine is whether, in light of changing demographics and the 103rd amendment, surpassing the 50% ceiling limit would result in violating the basic structure of the Constitution. There has been an increase in the number of backward classes and most of the States have responded with increasing their reservation limits over 50%.

 

Submissions by Sr. Adv. Abhishek Manu Singhvi

Sr. Adv. Abhishek Manu Singhvi argued that the current case happens to a first of its kind in that it falls at the intersection of Articles 15 (5), 15 (6), 50% ceiling limit and the 102nd amendment. Referring to the Special Leave Petition, Singhvi noted that the Petitioners themselves have framed the issues in this cases as ‘major questions of constitutional law’.

The proviso to Article 145 (3) should be read as expanding the Court’s power, not limiting it. It allows the Court to make a reference to a larger bench even if the case is in the mid-hearing stage. Referring to Sankaranarayanan’s argument that many similar cases were decided by smaller benches, Singhvi notes he had not cited any cases which revolved around the 50% limit or the 102nd amendment that was decided by smaller benches.

Lastly, Indra Sawhney might inform these issues but did not decide or closely examine it.

 

Submissions by Mr P.S. Patwalia

P.S. Patwalia, responding to earlier arguments on the State of Maharashtra using reference argument to stall the proceedings noted that the State was merely clarifying its position in light of reference. Respondent no. 3 requested for reference way back in February 2020.

 

Submissions by Sr Adv C.U. Singh

Sr. Adv. C.U. Singh submitted that Articles 145(2) and 145(3) needed to be read together. Clause 3 covers ‘terra incognita’ i.e., unknown territory or questions that have not been examined till date. In the present case, we see such an instance where questions have arisen involving the interplay of the 102nd Amendment with Articles 14, 15 and 16.