Day 8 Arguments – Constitution Bench

March 23rd 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?

 

Sibal argues that the 50% Rule in Indra Sawhney is not Binding Precedent

Senior Advocate Kapil Sibal continued his arguments for the State of Jharkhand. He reiterated that the 50% rule in Indra Sawhney was not a binding precedent. He cited case law that said only those principles in a case that is necessary for the outcome become part of the binding precedent. The Indra Sawhney case, submitted Sibal, only dealt with reservations below 50%. The rule could not be a binding precedent.

Building on his arguments from yesterday, he said that the rule cannot be strictly applied. He agreed, in conversation with the Bench, that a balance between reservations and equality of opportunity was necessary. However, he urged that such balance was not always 50%. If less than 27% of a State’s population was backward, then 27% would not be a balance there. Instead, he submitted that the test must be the one of reasonable classification under Article 15(1). The question is not whether 50% is exceeded, it is whether the reservation leads to ‘hostile discrimination’.

Currently, the rule disallows many communities from availing benefits, Sibal said. He highlighted especially Dalits from other religions who require reservations. He submitted that the Constitution is essentially a political document. Executives and especially legislatures, both have a mandate to make decisions based on data. The 50% rule ‘shackles’ them, and is an improper exercise of judicial power. He concluded his arguments on this question by pointing out that the Bench had multiple options. It could hold that the 50% rule in Indra Sawhney was not binding immediately. It was only if it decided that it was binding that it required reference to a larger bench.

On the interpretation of the 102nd Amendment, Sibal reiterated the Attorney General’s arguments. He said it didn’t affect States’ powers in any manner.

 

Solicitor General Addresses the Court on the Notification of a Central List

Solicitor General Tushar Mehta briefly addressed the Court. He clarified that the Attorney General had represented the Union of India’s views. The Court also asked him to clarify whether a notification identifying a Central List of SEBCs has been issued yet. They asked whether the 102nd Amendment would be rendered a ‘dead letter’ until a notification was issued. Mehta clarified that the old Central List maintained its legitimacy. However, he would submit a written response on the preparation of a new List under the new regime.

 

Singhvi Says the 102nd Amendment Does Not Affect States, if read in Context

Senior Advocate Dr. Abhishek Manu Singhvi appeared on behalf of two respondents who were petitioners in the Bombay High Court. He argued that if the context of the 102nd Amendment was understood, the Amendment does not affect states’ powers to identify backward classes.

He looked at the Rajya Sabha’s Select Committee Report. The Report had stated that the Amendment’s purpose was to provide constitutional status to the National Commission for Backward Classes. Article 342A only gave effect to the ability of the NCBC to make recommendations about identifying SEBCs. The Committee was also assured that State Commissions would be unaffected.

Dr. Singhvi also referred to the NCBC Act, 1993 and Maharashtra’s State Commission Act of 2003 to point out that the separate lists were maintained. With this legislative context, the mention of the ‘Central List’ in Article 342A does not preclude States power.

Further, the List has not yet been notified. Any challenge to the Amendment or its interpretation should be done only when an actual issue is before the Court. The Court cannot rule on it in the hypothetical.

 

States’ Counsel Supplement Arguments

Mr. Manish Kumar addressed the Court on the 102nd Amendment for the State of Bihar. He pointed out that the NCBC Repeal Act, 2018, which was passed along with the 102nd Amendment Act, ‘saved’ the old Central List. So the 102nd Amendment only affected the process of changing that List, and affected nothing else. Mr. Karan Bharihoke appeared for the State of Punjab.

Senior Advocate Manish Singhvi submitted two arguments for the State of Rajasthan. He argued that States must have the power to identify their own backward classes. This was implicit in various parts of the Constitution. Besides the 7th Schedule, he highlighted the provision to make reservations for Panchayats and Municipalities in the State. The power of identification was implicit in this.

Secondly, he noted that Indra Sawhney decided reservations as a ‘facet’ of equality of opportunity. Since it was no longer an ‘exception’, it is arbitrary to restrict the promotion of equality to 50%. The extent of reservations should be judged on the facts of each case. He also pointed out that transgender persons were labelled a backward class in NALSA v Union of India. So, caste was no longer the only basis for classification.

Senior Advocate S Niranjan Reddy represented the State of Andhra Pradesh. He adopted the reasoning of Rohatgi and Sibal. He pointed out that the Constitution provides special provisions for 80% reservations for locals in Andhra Pradesh. So, the ‘extraordinary circumstances’ in Indra Sawhney should not be restricted to ‘remote areas’ or those outside the national mainstream. Reservations should not be judged on an arbitrary quantitative basis, he submitted. Instead, it should be judged on qualitative criteria.

Additional Advocate General for Tamil Nadu, Jayant Muth Raj, also reiterated that ‘extraordinary circumstances’ was not the appropriate consideration when it came to reservations. He will conclude his argument for the State tomorrow.