Day 9 Arguments – Constitution Bench

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?

 

States’ Counsel Apprise the Court with Supplementary Arguments

Senior Advocate Shekhar Naphade addressed the Court for the State of Tamil Nadu. He said that Indra Sawhney was unclear on the application of the rule, or what ‘extraordinary circumstances’ meant. He submitted that 6 judges had actually noted that the population of backward classes was relevant to the quantum of reservations.

Senior Advocate Mukul Rohatgi appeared for the States of Karnataka and Chhattisgarh. He asked the Court to notice some special provisions in Article 371J. This allows Karnataka to have domicile-based reservations. He submitted that the interpretation of Articles 15 and 16 and the 50% rule should take these special provisions into account. He also cited the SB Joshi judgment applicable to Tamil Nadu and Karnataka. Conceding to the bench’s remarks that this case misunderstood the law, he argued that this was the issue with the 50% rule. There was no clear understanding of it. He also asked the Court to take notice of the high tribal population and the incidence of Naxalism in Chhattisgarh.

Mr. Jaideep Gupta addressed the Court on behalf of the State of Kerala. He agreed with earlier counsel that Indra Sawhney could be interpreted as not having laid down a 50% limit. In the alternative, if it had, it should be reconsidered. He also pointed out that the EWS amendment would exceed 50%. This is because Indra Sawhney discussed a 50% rule after striking down economic weakness as a basis for reservation. Thus the 50% rule was legitimate when only caste was the basis for reservation. That is no longer the case. He reiterated that the 102nd Constitutional Amendment Act did not take States’ powers.

The Additional Advocate General for the State of Haryana adopted the arguments of the main respondents. He also stressed that the102nd Amendment should not affect notification of reservations by States for communities that are already in effect.

The Advocate General of Meghalaya brought the Court’s attention to Article 244. This is the Constitutional basis for ‘extraordinary circumstances’ justifying reservations in the several North-Eastern States.

The Deputy Advocate General for the State of Uttarakhand, Vinay Arora adopted the Attorney General’s arguments on the 102nd Amendment. However, he submitted that Indra Sawhney had struck the right balance, and should not be reconsidered. Uttarakhand was the only State to take this position.

Mr. Tapesh Kumar Singh asked the bench to note that the Maharashtra Public Services Commission is constitutionally barred from commenting on the matter. Therefore, though they were a respondent, they would not argue.

 

CU Singh Looks at the Date in the Gaikwad Commission Report in Favour of Reservations

Senior Advocate Chander Uday Singh appeared for two parties who had appeared before the Bombay High Court earlier. He pointed out that the Report had gone into great detail in finding information to determine backwardness. The community was mostly agricultural and had suffered a large incidence of farmer suicides. The bench asked why this was an indicator of backwardness. Senior Advocate Patwalia interjected to note that most of them were agricultural labourers.

When they migrated to cities, they had to stay in slums. More than 45% of people in Pune’s slums were Marathas. The bench pointed out that most urban migrants stay in slums. Even within agriculture, many Marathas had to migrate to get jobs, such as harvesting sugarcane. He also noted that the dabbawalas of Mumbai, who had no social security, were 95% Marathas.

Even though the Maratha population is around 30%, they have only around 16-18% in various State services. He also cited low representation in Central services like the IAS and IPS. He compared this with the OBC category which had an almost equal proportion in the services as their population in the State. The bench asked whether a lack of proportionate representation was indicative of backwardness. Justice Bhushan also commented that it was to the merit of the Marathas that they had achieved this much while being in the general category.

Singh also discussed the proportion of Marathas who received admission in higher education courses, and how many professors in State institutions were Marathas. These figures were ‘pathetic’ according to Singh, compared to their percentage of the State population.

He asked the bench to note that this data should be viewed holistically. None of these should be viewed in isolation. He also said that representative sampling was a valid method of survey.

Patwalia requested to be heard again. The Court asked him why villages were selected on the basis of having a large population of Marathas. Patwalia submitted that a comparative approach was not necessary. Since it was the Maratha reservation that was being looked at, their community was the one that was surveyed. He also asked the Court not to question the findings of the Report. He said that issue was not before the Court. Only one petition which had asked for Muslim reservations had challenged it. He concluded by saying that there was no reason to doubt the report.

 

Intervenors Broadly Supported the States

Senior Advocate Arvind Varma appeared for an intervenor who had seen the condition of the Marathas at the grassroots level, he submitted. He reiterated that reservations ought to be granted. Mr. Sudhanshu S. Choudhari appeared for another intervenor. He highlighted the use of the words ‘in the opinion of the State’ in Article 16(4). This meant that reservations could be granted on the subjective satisfaction of the State. A judicial rule could not interfere with that.

Senior Advocate Mahalakshmi Pavani appeared for an intervenor who had appeared for the CLAT exam and received a seat under the SEBC quota. She argued that the Rajya Sabha Select Committee Report did not have dissents, as the petitioners had argued. There were different opinions, but on the whole, the report indicated that the intention was that States would retain the power to identify backward classes. She also pointed out two independent surveys that had collected data on the backwardness of Marathas.