Day 6 Arguments – Constitution Bench

March 19th 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?

 

Rohatgi Submits that Indra Sawhney Should be Reconsidered on Multiple Grounds

Senior Advocate Mukul Rohatgi, appearing on behalf of the State of Maharashtra, began arguments on the issue of whether Indra Sawhney should be reconsidered. He submitted that there were three grounds on which it ought to be reconsidered. First, there were substantial changes in the law. Second, the case itself asked for periodic review. Third, its reasoning could be doubted. At the outset, however, he stressed that Indra Sawhney only interprets Article 16(4) which considers reservations in government employment. Reservations in different fields under 15(4) are not affected by the 50% rule. So, if the Court chooses to apply the 50% rule, it should only partially strike down the SEBC Act.

Rohatgi highlighted various changes in the law. One was the 103rd Constitution Amendment Act. This Act made reservations for ‘economically weaker sections’ (EWS) possible. Prior to the amendment, Indra Sawhney had rejected EWS as a basis for reservation. The Amendment thus rendered at least that part of Indra Sawhney redundant. It also, according to Rohatgi, doubted the 50% rule. Since Parliament was aware that a 10% EWS reservation would take reservations in many States beyond 50%, it can be argued that the Amendment implicitly questioned this rule.

Similarly, two other rules in Indra Sawhney have since been reversed. In 1995, the 77th Constitutional Amendment Act reintroduced reservations in promotions. In 2000, the 81st Constitutional Amendment Act reintroduced the ‘carry-forward’ rule that allows unfilled seats to remain reserved the next year. These Constitutional Amendments were an indication that Parliament had undermined the decision in Indra Sawhney over the years, submitted Rohatgi.

Another major change in the law is in the application of a 50% rule to minority institutions. In the St. Stephen’s case, the Court attempted to balance the right of minority institutions to manage their affairs and rewarding merit. It held that only 50% of seats could be reserved for students from their minority community. In TMA Pai, the Court said such a strict rule could not be applied. The bench asked Rohatgi why this was relevant since the rights of minority institutions have different considerations from those under Article 16. Rohatgi submitted that St Stephen’s had relied on Article 16 and the 50% rule from Indra Sawhney, and they had the same ‘flow’. On the basis of these changes, Rohatgi submitted that this was ground Indra Sawhney ought to be reconsidered,

On his second ground, Rohatgi submitted that Indra Sawhney itself asked for periodic review. Citing the Mandal Commission, it also noted that there must be a review after 20 years. The bench remarked that this review was not meant to be of the rules under Article 16, but the inclusion or exclusion of communities. Rohatgi argued that while this was true, the changing circumstances, where it is now possible that almost 90% of a state is backward, might indicate a review of the rules as well.

Finally, on his third ground, Rohatgi looked at the reasoning in Indra Sawhney. First, he pointed out that the reasoning behind the 50% rule had been debunked though the rule was maintained. MR Balaji was the first case that mentioned the rule. It held so because it found that 16(4), which granted reservations, was an exception to 16(1), which granted equality of opportunity. The exception could not overtake the general rule. Rohatgi submitted Ambedkar’s speech in the Constituent Assembly  that said reservation should be ‘confined to a minority’ also used this logic of an exception. However, NM Thomas and Indra Sawhney both held that 16(4) was not an exception but an ‘enabling provision’. So, the 50% rule no longer had a basis in the Constitution, Rohatgi submitted.

Further, citing the Directive Principles of State Policy, he stated that it was a duty of the State to provide welfare to backward classes. This duty should be a relevant consideration in interpreting Articles 15 and 16. Rohatgi suggested that if a balance must be struck between competing principles of formal equality and reservation, the DPSPs inform the Governments and Parliament to achieve the balance rather than the 50% rule being imposed from Courts.

Rohatgi also pointed out that the judges in Indra Sawhney were 8:1 in agreement with the 50% rule. Among those who mentioned a 50% rule, it appeared 4 were in favour of a strict rule whereas 4 allowed for some exceptions. Such a three-way split was not permitted under Article 145(5), which allowed for a majority opinion and dissent alone, according to Rohatgi. It was unsure what the status of such a judgment could mean, especially since the 50% rule has been subject to disagreement and dissent over the years.

Before concluding, on the second question, he submitted that the exception to the 50% rule was not fully illustrated. The judgment gave an example of ‘far-flung areas’ but this was not the only exception, and other exceptions may exist.

 

Patwalia Defends the Gaikwad Commission Report 

Senior Advocate Paramjit Patwalia began his submissions. His primary submissions are on the second and third questions set by the Court. Before beginning on that point, he supplemented Rohatgi’s arguments by citing Navtej Johar, noting the transformative role of the Constitution. The Constitution was a document that actively aimed to transform the caste-based feudal society that was India through provisions like reservation, Patwalia submitted.

Patwalia responded to some arguments made by Senior Advocate Pradeep Sancheti for the petitioner. He noted that the allegations against the members of the Committee were ‘uncharitable’. They were all experts in their fields, and no party had challenged its composition for being biased or on any other ground. He also noted that a small sample size was not a ground for dismissing the validity of a report, citing various judgments. Data could be gathered in multiple ways, and in this report too, the sample survey was a small part of the process.

Patwalia then looked at the methodology of the Commission. He noted a fixed number of villages were selected from rural areas in each District, except the 4 tribal ones. For urban areas, one municipality was chosen. In the Pune-Mumbai region, since Pune was selected, Mumbai was not in the report. So, it was not a lapse. Patwalia also pointed out that public hearings and opinions were invited. Almost 2 lakh ‘representations’ were received from various sources and 21 public hearings held. The bench, however, remarked at the lack of clarity in the way the data was presented in the report. It did not seem to be clear how these representations were received.

The court concluded at this point, with Patwalia scheduled to continue on Monday.