Day 7 Arguments – Constitution Bench

March 22nd 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?

 

Patwalia Notes that State Legislature is Within the Scope of ‘Extraordinary Circumstances’

Senior Advocate Paramjit Patwalia continued to address the bench on the second and third questions framed by the Court. He defended the Gaikwad Commission’s Report as a good basis for providing reservations to Marathas, and to exceed 50% under ‘extraordinary circumstances’.

He reiterated that the public hearings by the Commission were procedurally fair and transparent. He pointed out that they were publicly notified. The high numbers are not dubious. They are high because many hearings had peaceful, silent marches with many people coming to the hearing and submitting a representation together. Patwalia’s attempt to ask the Court to notice these demonstrations, however, were rejected. Justice Gupta said they are not permitted to do so under s. 114 of the Evidence Act.

The bench questioned why there were no objections to the grant of reservations. Patwalia pointed out that there were objections to including Marathas within OBCs, but none otherwise. If they were publicly notified, the Commission cannot be doubted for lack of responses, Patwalia submitted.

Patwalia then submitted that the Report had two grounds to show ‘extraordinary circumstances’. First, that the Marathas are a large backward community. Unless they are given some reservation, they will have to compete with more advanced communities which are proportionately very few and are more likely to corner the 50% of ‘general’ seats. Second, if Marathas were given reservation under the OBC category, then existing OBCs would have their reservations crowded out. The quota would be ‘cramped’.

The bench pointed out that the ‘extraordinary circumstances’ mentioned in Indra Sawhney may not have been exhaustive, but they were indicative. Justice Jeevan Reddy had indicated two conditions in Indra Sawhney. That the community was outside the national mainstream and that there are circumstances peculiar to them. Patwalia submitted that ‘extraordinary circumstances’ should not be restricted to these conditions. He also noted that only 4 judges had agreed to Justice Jeevan Reddy’s judgment. The other 5 judges had provided their own opinions, and there was uncertainty on what the majority had said in the case.

Patwalia also asked that due deference be given to the Act since it is a legislative enactment that was unanimous.

 

Naphade Argues that the Source of the 50% Rule in Balaji was Erroneous

Senior Advocate Shekhar Naphade made supplementary submissions for the State of Maharashtra. He submitted that Balaji, where the 50% rule originated, was wrong. In addition to the reasons provided by Senior Advocate Rohatgi, he noted that there was no scientific basis for the number. Further, various other aspects of that case had already been overruled.

He also submitted that the 50% rule was not the binding precedent to be taken from Balaji. The case was decided on the basis of other criteria, and the 50% rule was thus not a binding remark.

Naphade then submitted that the 102nd Amendment did not take States’ powers to identify SEBCs. This was because States had such power under the Seventh Schedule by strong implication. Any change to such power would require an amendment that was ratified by half the States. The 102nd Amendment did not go through that process and cannot have taken States’ power.

 

Sibal Believes that the 50% Rule in Indra Sawhney is not Binding Precedent

Senior Advocate Kapil Sabil appeared for the State of Jharkhand. He argued for Indra Sawhney to be referred to a larger bench. He began by pointing out that this case was a ‘matter of great moment’ with a large impact. So the questions must be decided with data, not in the abstract.

He submitted that the grant of reservations is essentially a political issue. The interim orders in Indra Sawhney indicated this. The 50% rule, he said, was a ‘balancing act to give quietus’ to the political tumult at the time. The rest of his arguments for the day reiterated that the 50% rule was not binding precedent from the case.

He quoted at length from government statistics. First, he pointed out that the percentage of backward classes and their population growth varies drastically from State to State. Tamil Nadu has 76.1%, Assam 29.3%. He said that there cannot be a ‘one size fits all’ formula for constitutional questions. Considerations of equality differ. Accordingly, the 50% rule cannot be a valid compromise.

Sibal then looked at the Gross Enrolment Ratio (GER) in educational institutes. This fell drastically as the education level increased. India’s GER for higher education was less than the global average. Sibal argued that GER is an indicator of the future wealth of the country. He pointed out that various government positions had unfilled vacancies. The vacancies in the general category were often far lower than those for SCs/STs/OBCs. Education is the start of the path to employment, Sibal argued.

It is in the background of this data that reservations are necessary under Article 15(4). It is a means of empowerment. Sibal also asked what was wrong with exceeding 50% for caste-based reservations when Kendriya Vidyalayas, Kasturba Gandhi Bal Vidyalayas and other public schools had restricted admissions. In passing, Justice Bhat remarked that reservations cannot be an end. It is only one measure among others.

Sibal also argued that Indra Sawhney did not lay down a 50% rule as a binding precedent. The case dealt with the Office Memorandum (OM) that implemented reservations. It did not deal with the Mandal Commission itself. The reservations in the OM was for a total of 49.5% on the basis of caste, and 10% for economically weaker sections (EWS). Once the EWS reservations were struck down on other grounds, the discussion on the 50% rule was unnecessary. The OM did not exceed 50% anyway. He submitted that if the 50% rule was not an operative part of the reasoning, it was not binding precedent. This was echoed by Justice Kuldip Singh’s judgment in the case.