Maratha Quota Case : Indira Sawhney Decision Delivered After Much Discussion; No Need To Revisit, Datar Argues In Supreme Court

A Constitution Bench of the Supreme Court started hearing on Monday the challenge against the constitutionality of Maharashtra Socially and Educationally Backward Classes (SEBC) Act, 2018, which provides for a quota to Marathas in jobs and education. The 5-Judge Bench headed by Justice Ashok Bhushan heard the arguments put forth by Senior Advocates Arvind Datar and Shyam Divan, appearing Petitioners who have challenged the validity of the Act. In today's hearing, Datar commenced his submissions on the issue of whether the 50% limit as set by the 1992 Indra Sawhney judgment could be crossed and as to whether the 9-Judge Bench judgement should be revisited. Datar submitted that there was not a single Judgement which doubted the competence of Indra Sawhney and referred to multiple Constitution Bench judgements which had been referred to a 9-Judge or an 11-Judge Bench. "We tried to find out when and why the Supreme Court sat 5 times in an 11-Judge Bench composition. In each case, the reason to refer to 11 Judges was a serious doubt in the matter of law. My proposition is that there is not a single Judgement post Indra Sawhney that I can locate about the revisiting of it", submitted Datar. It was then highlighted by Datar that very high threshold was required before reference and had already been deliberated upon in Indra Sawhney. "Indra Sawhney was delivered after so much of deliberation and discussion, that I humbly submit that there is no need to revisit. As far as 50% is concerned, it has been accepted by everyone since 1991 and has been applied for Articles 15(4) and 16(4). It has not been questioned unlike other cases", stated Datar. He further averred that the Parliament, for 30 years, had left the 50% limit alone, and whenever it had been circumvented, Constitutional amendments were made. He then referred to Dr. Ambedkar's speech from 1948 to underline the point that the first principle of Article 14 had been placed at the apex. Datar continued, "You can achieve equality by giving certain opportunities. That's what Dr. Ambedkar propounds in his speech. Till NM Thomas, no one says that 50% can be crossed. Indra Sawhney considers everything." In response to Justice Rao's query on the issue that Indra Sawhney only deals with Article 16(4), Datar responded that nowhere it had been argued that Indra Sawhney could not be made applicable to 15(4) as well. "Indra Sawhney is not restricted to 16(4) of the Constitution alone, but to reservation as a whole. Otherwise it would be paradoxical to say that it will be 50% for public posts, but for education, it would be 60-70%. Later judgements also do not question this. Immediately within a year of the judgement, Parliament understood that this would apply to admission in colleges also and that therefore, it would extend to 15(4). Both 15(4) and 16(4) are in the context of what we call affirmative action where the State can make special concessions", submitted Datar. It was also submitted by Datar that wherever the Parliament wanted to overcome Indra Sawhney, they made four Constitutional amendments. He submitted, "The fact that they haven't touched Indra Sawhney in 30-40 years is a ground that Indra Sawhney should not be revisited. The second ground is that our research has shown that Sawhney has not been doubted in any judgment. We can look at multiple cases where High Courts have applied 50% and struck down the laws. After Indra Sawhney, the 50% limit has been reiterated by four Constitution Bench judgements, including Nagaraj. Even recent Justice Arun Mishra judgement has touched upon it". Datar then also put forth the issue pertaining to social dynamics and how the 50% limit is an essential part of equality. "That is what Dr. Ambedkar calls the 'first principle. It's before all, it's a meta principle. 15(4) and 16(4) further this law of equality". Datar then commenced his submissions on how the Marathas could not be perceived as a backward class and stated, "it would be putting all logic on its head if you say that Maharashtra is a far-flung area. This was not the intention of Indra Sawhney. It was to avoid rigidity. In North-East states, it has increased because it was needed. But the same cannot be said for Tamil Nadu, Karnataka and Maharashtra. It has to be taken into account that Dr. Ambedkar himself contemplated that reservation had to be confined to minorities. Reservation of majority was never envisaged by the founding fathers". He then submitted that the Court could take judicial notice of the fact that a prosperous and progressive State like Maharashtra could not give reservation to Marathas and the SEBC Act had to be struck down. "No reservation should exceed 50% and it should not be exercised by majorities. So, there's a complete bar. The relaxation is for populations of such far-flung areas on account of their being outside mainstream life, for ...

Maratha Quota Case : Indira Sawhney Decision Delivered After Much Discussion; No Need To Revisit, Datar Argues In Supreme Court

Radhika Roy

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