'No Extraordinary Circumstance To Exceed 50% Limit' : SC Constitution Bench Hears Lawyers Opposing Maratha Quota On Day 3

A Constitution Bench of the Supreme Court sat for the third day to hear the petitioins challenging the Constitutionality of the Maharashtra State Reservation For Socially and Educationally Backward Classes (SEBC) Act which provides for a quota to Marathas in jobs and education.A 5- Judge Bench of Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat heard the submissions of Senior Advocates Pradeep Sancheti, Dr. Rajeev Dhavan and BH Marlapalle today. Pradeep Sancheti – "There is no extraordinary circumstance which allows for reservation above the 50% limit ". Sancheti continued his submission from the previous day by referring to the 1872 census in order to elucidate the point that Marathas could not claim now, contrary to multiple Committee Reports, that they were socially backward. "You are saying that 80% were backward in 1872, and this becomes an extraordinary circumstance. Can this be treated as such a circumstance under Indira Sawhney?", stated Sancheti. He further underlined the current progress of Marathas and submitted that in order for a class to be declared as socially and educationally backward, the economic criteria had to be taken into account. "Reservation is not a fundamental right; it is only an enabling provision. Farmer suicides etc. can be in hundreds or thousands. But these are not peculiar to Marathas and have been happening across the country". Sancheti then highlighted the issues in the Justice MG Gaikward Report which had submitted that 80-85% of the Maratha population is backward and as such including then within the 50% ceiling would be injustice to them and would upset existing reservations. "The Commission report proceeds on the basis that previous reports are unfounded and do not have the data to back their assertions and that's why they have been unreasonably excluded". It was then submitted by Sancheti that majority of the posts had been occupied by the Marathas and that the argument pertaining to historical injustice was flawed. He referred to the judgment of Ram Singh regarding reservation of Jats, which had been consequently rejected by the Supreme Court on the grounds that outdated statistics could not be considered for inclusion as they would lead to retrograde governance. He further highlighted that the sample size that had been considered for the assertions made in the Gaikwad report was too small and therefore, the data analysis was patently flawed. "950 persons out of 100,000 persons were consulted. This cannot be allowed. You cannot go to select remote areas and pick select people, and then say, 'look, they are backward'. In Nagpur, they interviewed 153 out of 50 lakhs. In Konkan region, they interviewed only 73 people. You cannot do that and then say that previous reports should be discard as they have no data and they are flawed", asserted Sancheti. Sancheti also submitted women employed in physical labour from rural areas were mostly consulted – "One criterion for being considered socially backward is whether other classes/castes consider you to be so. If you check the survey, more than half of the people surveyed are Marathas themselves. In your survey, everybody is backward, because your pocked of survey is as such. Almost 40% of MPs and MLAs are from this community. Even the Bombay HC held that there was material to indicate that Marathas were socially and politically dominant". He concluded on the note that if the Court was persuaded to hold Marathas backward, then at the very highest, it would be a case of inclusion in OBC within 50%, and not a acase for exceeding 50%. Dr. Rajeev Dhavan – State Still Has Immense Power To Implement Provisions Related to Reservation Within The States Dr. Dhavan commenced his submissions by informing the Bench that reservations when made by the State were propelled because of social pressure. "When we see why reservation are made by States, it is because of social pressure and almost as a consequence of telling the State that if you don't do it, we will rebel. This was done by the Jat community. Meena community also wants to be included in the Scheduled Caste", averred Dr. Dhavan. Dhavan then emphasized the importance of social dynamics and asked whether one could say that there had been no improvement after 70 years and in fact, there had been regression. Shedding a light on the aspects of reservation, Dhavan submitted to the Bench that while the first aspect, i.e. identification, was vested in the Parliament, the most important aspect, i.e. implementation, was still in the hands of the State, and the third was rigorous judicial scrutiny. "Part of the quarrel for reservation is that the States are saying that the power for identification has been taken away from them and given to the National Commission. But, there is a huge power of implementation. Percentages, creamy layer...

'No Extraordinary Circumstance To Exceed 50% Limit' : SC Constitution Bench Hears Lawyers Opposing Maratha Quota On Day 3

Radhika Roy

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