Day 5 Arguments – Constitution Bench

March 18th 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?

 

Petitioners’ Lawyers Conclude Arguments with Supplementary Submissions

The Court heard various lawyers in the first half, wrapping up arguments for the petitioners.

Senior Advocate H.B. Maralapalle concluded his arguments from yesterday. He reiterated that if the 102nd Constitution Amendment took powers of identification away from the State, it did not affect the basic structure of federalism in the Constitution. He also added that the reasons provided for ‘extraordinary circumstances’ for breaking the 50% rule were not logically or legally sound.

Dr Gunratan Sadavarate had argued for one of the main petitioners in front of the Bombay High Court. He submitted that the procedural aspects laid down by the 102nd Amendment Act was the primary question. The 50% rule was irrelevant if States did not have the power to identify SEBCs as Maharashtra had done. He also pointed out some political realities in the State. He submitted that Maratha reservations become an issue only when there is a non-Maratha CM. After the Court’s stay on implementation, Marathas who had claimed reservation were given positions under the EWS quota instead. This indicated there was never a real need for a Maratha quota, Sadavarate submitted.

S.B. Talekar represented applicants who had sought reservations for Muslims. His first argument that the States never had the legislative competence to identify SEBCs left the judges unimpressed. On the relief he sought, the Court noted that they have little power to order reservations to be granted since it is an ‘enabling provision’ of the State. They said that if the petitioners were right, now only the NCBC could make such a recommendation. Talekar also asked the Court to take notice of two amendments to the Maharashtra Commission for Backward Classes Act. They increased the membership from 7 to 11. This allowed more Maratha members on the Commission while only 4 remained reserved for OBCs and nomadic tribes.

R.K. Deshpande submitted that the 102nd Amendment was very particularly aimed at removing States’ powers to identify SEBCs, not OBCs.

Amit Anand Tiwari attempted to argue that the question of whether Indira Sawhney should be referred to a larger bench was not within the powers of the current Bench to consider. The judges took issue with this argument and noted it would render most of the arguments already submitted redundant. He submitted supplementary arguments in favour of the petitioners’ views that the 102nd Amendment took States’ powers to identify, but did not violate the federal structure.

 

Bench Sends Back Similar Cases From Other States

The Court then referred to matters that were tagged with the Maratha Reservation issue. These were challenges to a 2011 Chhattisgarh Act and a 2016 Haryana Act. On the former, the Court heard Senior Advocate Preetesh Kapur. He submitted that Parliament is presumed to know the Supreme Court’s decisions when they amend the Constitution. So, the 102nd Amendment was aware that when it ‘mirrored’ the words in provisions with respect to SCs/STs, it would be mirroring the rules under those provisions too. On the latter issue, Advocate Jaikriti Jadeja appeared before the Court.

On both these issues, the Court noted that their particular circumstances might differ based on geographical and social contexts. And they cannot consider their issues alongside the ongoing case. They sent the Chhattisgarh challenge to the High Court and the Haryana challenge back to the Supreme Court bench it was meant to be heard by.

 

AG K.K. Venugopal Submits that the 102nd Constitutional Amendment Does Not Denude States’ Powers

The Attorney General for India, KK Venugopal, then submitted the Government of India’s position. He was issued notice particularly on the interpretation of the 102nd Constitutional Amendment Act and said he would restrict his submissions to that point. Venugopal submitted that Indira Sawhney had held that States had the power to identify SEBCs and OBCs, implicit in Articles 15(4) and 16(4) of the Constitution. It was thus ‘inconceivable’ that the 102nd Constitutional Amendment sought to denude the States of this power.

The Objects and Reasons of the Bill also noted only a change to the Central List. It was to give constitutional status to the National Commission for Backward Classes and promote their welfare, not to take States’ powers. The Select Committee of the Rajya Sabha was similarly assured States would continue to have powers of identification.

Justice Bhat noted that if 15(4) and 16(4) are the source of States’ powers to identity under their power to do ‘social justice’, then this power would extend to them being able to identify SCs/STs as well. Venugopal submitted that the Original Constitution separated SCs/STs and their identification and gave such power to the Centre. It left SEBCs and OBCs for the States. The 102nd Amendment, with nothing more specific, should not be assumed to change this.

Venugopal then addressed some specific phrases. The use of the phrase ‘in relation to that state’ in Article 342A was not about giving the Centre the power to make lists replacing State Lists, but to make the Central List state-wise, said Venugopal. This was because the Union provides employment in every State. Further, when Article 366(26c) says that SEBC is ‘deemed’ to be those covered by 342A, Venugopal submits this does not affect States’ classification of SEBC. Article 366 begins with ‘unless the context requires’. Venugopal submitted that when it comes to States’ the context of defining SEBCs is different.

Finally, before concluding, the Attorney General asked the Court to not decide the interpretation of 342A. That question was already referred to a 7-judge bench along with EV Chinnaiah. Justice Bhushan noted that this would not be feasible as some interpretation must be applied for the Maratha reservation case at hand.

 

The Court adjourned early, with other respondents scheduled to begin their arguments tomorrow.