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

The Central Government on Tuesday told the Supreme Court that it was of the opinion that the law passed by the Maharashtra assembly to provide reservations for Marathas in jobs and education is constitutional. "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 102nd 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 7th 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 103rd 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 102nd 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%". ...

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

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