Maharashtra Law Granting Maratha Quota Constitutional, Centre Tells Supreme Court [Day 7]

"In Our View, SEBC Act 2018 Is Constitutional", Solicitor-General Tushar Mehta, appearing on behalf of Central Government, told the Constitution Bench of the Supreme Court hearing the challenge to the Socially and Educationally Backward Classes Act, 2018.

The SG, after submitting that the 102^nd Constitutional Amendment would not denude the States of their power to declare SEBCs, conveyed to the Court that the Centre was of the view that the Maharashtra SEBC Act was constitutional.

"We have construed Article 342A to be a confined role of the Central Government. In our view, in the case of Maharashtra, the State's Act is constitutional", stated the SG.

The SG added that he was adopting the submissions made by the Attorney General that the 102nd Constitution Amendment will not affect the powers of States to draw OBC lists.

The Court had sought the views of the Centre on the ambit of the 102nd Constitution Amendment which inserted Article 342A to establish National Commission for Backward Classes.

The 5-Judge Bench comprising Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat were hearing on the 7^th day a batch of pleas challenging the SEBC Act, 2018, which provides for reservation for Marathas in jobs and education.

1) Senior Advocate Kapil Sibal

Appearing for State of Jharkhand, Sibal resumed his submissions on the majority in Indra Sawhney not having accepted the Mandal Commission report in order to put forth the point that while the Court had the power to strike down reservation on the grounds that it violated Article 16(1) or 16(4), but it did not have the judicial power to fix the limit of 50%.

He submitted that reservations depends on the facts and circumstances of the matter, and the same could only be ascertained by the States, not Courts.

"The point is, if more than 50% reservation is given, then why is it bad? If you find that certain communities have never had the chance to get an education and you reserve seats for them, is there anything wrong with that? Without data, reservations cannot be fixed. Mandal cannot decide because Mandal does not have the data. 50% limit emerges from an observation and becomes the law for 30 years".

Sibal then informed the Court that the NM Thomas case and Article 15 prohibited hostile discrimination and not reasonable classification. He added that agitations had taken place during and after the Mandal report, and that only because Marathas were leaders, it did not mean that 80% of the community was forward.

It was further submitted that the power of judicial review of the Court only came in to check excesses of power of the State when it was exercised, and not before that.

"You cannot in anticipation lay down a rule of law. The jurisdiction under the Constitution is not to preempt discrimination through a rule of law. Courts should not legislate and must not legislate. If the legislature says no reservations beyond 50%, that is their power. Courts cannot say that because it is legislation. Indra Sawhney shackles the State legislature".

Sibal also conveyed to the Court that many States had already exceeded the 50% limit by providing reservations to Economically Weaker Sections. He stated that the 103^rd Amendment which provided the "in addition to" 10% reservation to EWS over and above the 50% limit was contrary to the judgement. In light of the above, Sibal concluded that there was a need to refer the matter to a larger Bench.

2. Senior Advocate Manish Singhvi

Singhvi, appearing for the State of Rajasthan, argued that the term "backward classes" was broader than SEBCs and that Article 342A did not take away the State's power.

"Parliament was conscious that they were confining to the Central List when they enacted 102^nd Amendment. Articles 16(4) and 243(6) were not divested from the State and remained with them. States must have their own powers of identification of backward classes. Otherwise it is a violation of federal policy".

He contended that the Parliament in exercise of its powers of amendment had not taken away the State's power, and had that been the case, it would have been a colourable exercise of power which would encroach on the State's powers.

Singhvi further submitted that Article 16(4) was not an exception to 16(1) and that it was a facet of 16(1).

"Lakshman Rekha is impermissible. If one right is an extension of another right, one cannot say that 50% is the Lakshman Rekha. States should be permitted to extend the reservations beyond 50% if it finds a community not adequately represented. Judicial review should be case-specific and Act-specific. It cannot be on a general principle of 50%".

He concluded his submissions by arguing that Indra Sawhney required a reconsideration on the ground that a balancing test was required in each particular case, and not on the basis of a fixed limit.

3. Senior Advocate Dr. Abhishek Manu Singhvi

Dr. Singhvi commenced his submissions by stating that the material underlying Constitutional amendments and statutes made it clear that the State's power was never intended to be inhibited or circumscribed.

Referring to a 2018 judgement of Kalpana Mehta v. Union of India, Dr. Singhvi explained the extent to which Parliamentary reports could be relied upon or reviewed.

"It is clear as day that the Court can take aid of the report of the Parliamentary Committee for the purpose of appreciating the historical background of statutory provisions".

He submitted that State Lists had existed far before Indra Sawhney in order to fill vacancies in State/provincial institutions, and it was Indra Sawhney which created the larger movement of having Commissions.

"The dispute here is premature and hypothetical, and that the time for adjudication would only come in when the Central List is provided for, which provides for reservation either in the positive or the negative, with respect to certain classes called the 'Marathas'."

4. Senior Advocate S. Niranjan Reddy

Reddy, appearing for State of Andhra Pradesh, asked the Bench whether a State should be restrained from exceeding 50% in view of what had been said in Para 809 of the Indra Sahwney.

"810 para which otherwise says it cannot cross 50% may need reconsideration. In Andhra, it is 50% for backward classes. In relation to NCC and sports quota, it exceeds by 1% or 2%; that is horizontal. At one point, 5% was sought to be given to Muslims, but it was struck down as there was already a 45% reservation. 4% was later given."

Submitting that different States which had been placed unequally were being treated equally due to the 50% thumb rule, Reddy stated that States should be given a larger leeway under Article 15(4) if they decided to extend reservations.

He also averred that Article 324A was with respect to Central institutions alone, and did not take awy the States' powers under Articles 15 and 16.

The Court also heard Advocates Manish Kumar, Karan Bharihoke and AAG Jayanth Muth Raj.

Senior Advocate Shekhar Naphade, who is leading Raj on behalf of State of Tamil Nadu, will commence his submissions tomorrow.

BACKGROUND

The pleas before the Constitution Bench challenges the Bombay High Court judgment passed in June 2019, and submits that the Socially and Educationally Backward Classes (SEBC) Act, 2018, which provides for 12% and 13% quota to the Maratha community in education and jobs respectively, violated the principles laid in the case of Indira Sawhney v. Union of India (1992) as per which the Apex Court capped the reservation limit at 50%.

The Bombay High Court, while upholding the Maratha quota, held that 16% reservation is not justifiable and ruled that reservation should not exceed 12% in employment and 13% in education as recommended by the State Backward Commission.

On September 9, 2020, a three-judge Bench of the Supreme Court referred the cases to a larger Bench to determine the issue whether State Government has the power to declare a class as Socially and Economically Backward after the Constitution (102nd) amendment.

Reports of previous hearings

For How Many Generations Reservations Will Continue? Supreme Court Asks In Maratha Quota Case[Day 5]