Day 4 Arguments – Constitution Bench

March 17 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?

 

The Gaikwad Commission was Flawed and Fails to Meet Constitutional Standards: Sancheti

Senior Advocate Pradeep Sancheti was asked to continue his arguments on whether the Gaikwad Commission justified ‘extraordinary circumstances’. He invoked Indra Sawhney to clarify that an exception to the 50% rule due to ‘extraordinary circumstances’ was allowed for communities outside of the ‘mainstream of national life’. The report, however, did not use this standard, Sancheti argued. Instead, it erroneously suggested that because over 40% of the State population were Marathas, they were a ‘majority of unequals living in a majority of equals’ and the report considered this extraordinary.

Secondly, the report suggested that including Marathas within the existing OBC category would exclude other members of the OBC category from claiming reservation. Sancheti argued that this was not an ‘extraordinary circumstance’ either. This would be a slippery slope as any inclusion of a community as OBC could lead to such an argument.

Sancheti then looked at whether the report established the Maratha community as backward at all. He submitted that data such as the number of farmer’s suicides was irrelevant since this related to farmers of all communities, not specifically Marathas. He also noted that the report conflated Marathas and Kunbis (OBCs), despite various reports and historical sources having distinguished the two communities.

He also reiterated his arguments from yesterday on the inadequacy of sample size and composition of the survey conducted by the Gaikwad Commission. He criticised the commission for picking ‘convenient’ areas, people and data points to consider in the survey. This invariably threw up inconsistent, unreliable and unscientific results and outcomes. In light of this, he asked the Court to consider whether the Commission inspired confidence.

Supplementing his argument, he also noted that the Commission’s report failed to provide sufficient data or analysis of two other requirements for granting reservations. A requirement in Article 16(4) was whether there was an inadequacy of representation from the community. The Commission’s data on this was faulty. It also failed to note that Marathas were a dominant class. Another requirement under Article 335 was to consider the efficiency of administration. This found no mention in the report.

 

Indira Sawhney and the 102nd Amendment are in line with the Constitution’s Equality Regime and Federal Structure: Dhavan

Senior Advocate Dr. Rajeev Dhavan aimed to assist the Court in determining the tests and standards they would have to apply for each question. When he started, the Bench noted that he has appeared on every reservation case in the last 30 years.

Dhavan noted that there were two aspects of the Constitution relevant to the case: the equality regime and its federal structure. The Court’s first three questions dealt with the equality regime of reservations under Indra Sawhney and the last three with the federal structure as affected by the 102nd Constitutional Amendment Act.

On the equality regime, Dhavan highlighted that the 50% rule has strong principled and practical justifications. There must be a highly ‘compelling justification’ to breach it. The Court must also, on this question, go into the substance of the justification and not just its form. Dhavan said ‘courts cannot ignore that reservations are often given after political turmoil.’ Reservations are not a constitutional right.

He also submitted that there was no reason to refer Indra Sawhney to a larger bench. The respondent had argued that contemporary circumstances had brought the decision into question. The contemporary circumstances of political pressure are all the more reason to stick to the rules of the equality regime, said Dhavan.  There were also no conflicting decisions to consider. With respect to the effect of the 102nd Constitutional Amendment Act, that ought to be challenged separately.

On the federal regime, Dhavan noted that it must be seen in the context of not just taking away powers, but striking a ‘balance of powers’. The 102nd Constitution Amendment Act had only taken away powers of identification in reservations. The wide powers of implementation still lay with the State. Further, he noted that when Parliament exercises its ‘constituent power’ to amend the Constitution, the Court must be aware of its own powers to question this.

Citing cooperative federalism, Dhavan argued this did not hamper the federal regime. He also referred to Part XI of the Constitution as enshrining this principle of the State and the Union complementing each other’s powers. Thus, a grant of power to the Union Executive should not be ‘assumed to be arbitrary’.

Dhavan also noted a ‘dilemma’ in the Amendment Act. It defined ‘SEBC’, which till then had never been a term used for reservations: OBC was the term used. If interpreted narrowly, the OBC category would then be unaffected. Justice Bhushan pointed out, and Dhavan agreed, that Constitutional provisions must be given a generous interpretation. This indicated that Amendment could be interpreted in a manner that it would integrate with the existing reservation scheme, including OBC reservation.

Finally, Dhavan also briefly noted that the 103rd Constitutional Amendment Act which added a provision of 10% reservations for Economically Weaker Sections (EWS) was ‘irrelevant’. He submitted that EWS reservations could still comply with the 50% rule. The Amendment used the words ‘in addition to’ other reservations, with nothing more specific, the rule in Indra Sawhney should prevail.

The 102nd Amendment Act must be read in Context: Marlapalle

Sr. Adv. BH Marlapalle argued that Article 342A empowers the President to identify socially and educationally backward communities. Indra Sawhney had partially transferred this power partially to the States which the 102nd Constitution Amendment overturns. The Central List for OBCs was only created in 1993. Thus, the 102nd Constitution Amendment only deals with this list.

The Court adjourned for today, with Marlapalle scheduled to continue tomorrow.