'Affirmative Action Not Limited To Reservation Only': Supreme Court In Maratha Quota Case Hearing[Day 6]

On the sixth consecutive day of the hearing in the Maratha quota case, a Constitution Bench of the Supreme Court made observations regarding the need to move beyond reservations for the purposes of affirmative action."Affirmative action is not limited to reservation only", Justice S Ravindra Bhat, part of the 5-member bench, observed while hearing the arguments of Senior Advocate Kapil Sibal, who is supporting the Maharashtra State Reservation For Socially and Educationally Backward Classes (SEBC) Act which provides for a quota to Marathas in jobs and education."Other things can also be done. Why not promote education and establish more institutes? Somewhere this matrix has to move beyond reservation. Something more must be done", Justice Bhat continued.Justice Ashok Bhushan, the presiding judge of the bench, made comments regarding the need to balance the right to equality under Article 14 of the Constitution and reservation.On the previous day of hearing, the bench had asked for how many generations would reservations in jobs and education continue. The bench had also sought to know if the removal of 50% limit on reservation will affect the right to equality under Article 14 of the Constitution and would lead to a "resultant inequality"."If there is no 50% limit, what is the concept of Article 14 then? What would happen to the resultant inequality and for how many generations will this continue?", the bench had asked Senior Advocate Mukul Rohatgi, who was pleading for a reconsideration of the 50% cap imposed by the Inidra Sawhney judgment.The detailed account of the Day 6 of hearing before the the bench comprising Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat is given below.The bench heard the submissions of Senior Advocates Paramjit Patwalia, Shekhar Naphade and Kapil Sibal, who were arguing in support of Maratha quota.1. Sr. Adv. Paramjit Patwalia In today's hearing, Patwalia resumed his submissions on the efficacy of the Gaikwad Commission report and informed the Court that multiple public hearings had been conducted to gauge the reaction of people to the proposal for reservations for Marathas. "For Mumbai, public hearings were first held at CBT, Belapur and Thane on July 13. A huge number of representations were also sent which stated that submissions had not been made and in order to accommodate the remaining number of representations, an extra hearing took place at an office in Mumbai for which intimation was given. There was no compliant about anyone being prevented to testify", submitted Patwalia. To this, Justice Rao posed the question as to why there had been no opposition if publicity had been given – "It could have been that people may have not known if Maratha reservations were an addition to or a part of the 27% reservations. 90% respondents were Marathas." Justice Bhat also added that the terms of reference never stated that it would be a separate quota and that the people in the General quota would have the presumption that a 50% limit would be there. Patwalia then argued that the Gaikwad Commission was not packed with Marathas and that the earlier reports had been adequately considered. The Bombay High Court had also taken cognizance of the same. In response to questions about the Kalelkar Commission, Patwalia responded, "The State set up a new Commission which did not find them [Marathas] as SEBCs. Centre did not accept the Kalelkar report. This is why there were protests. The Deshmukh Committee, which said that Kunbis appeared in the OBC category, noted that Marathas and Kunbis were two sides of the same coin. That is how Marathas started feeling resentment as they felt they were being left out".Patwalia also underlined the fact that the huge population of Marathas and the small quota available created an "extraordinary circumstance" which validated the breaching of the 50% limit, and that this was the only harmonious solution available as sharing the well-established reservation limit would be catastrophic. "The reservation would have been a complete illusion. And this was done to make it real, and not illusory", submitted Patwalia. This was opposed by the Bench who noted that merely because a community was in a far-flung area, it would not entitle them to reservation as per Indra Sawhney, and other conditions, such as remoteness leading them to being out of mainstream life and peculiar nature of being, would also need to be satisfied. Patwalia then concluded his arguments by stating, "Court should keep in mind that in cases like these, it is the subjective satisfaction of the State which the Court is putting to scrutiny. A community should be given an opportunity to uplift itself. Studies should be done from time to time to ascertain backwardness". 2. Sr. Adv. Shekhar Naphade Naphade commenced his submissions by stating that the Gowda Committee and the State had not...

'Affirmative Action Not Limited To Reservation Only': Supreme Court In Maratha Quota Case Hearing[Day 6]

Radhika Roy

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