The Supreme Court on Friday (August 28) heard arguments with respect to reference to an 11-Judge Bench of the issue pertaining to whether the State had the power to exceed the 50% reservation cap, as dictated by a 9-Judge Bench in the case of Indira Sawhney.
A Bench of Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat heard the matter as Senior Advocates Dr. Abhishek Manu Singhvi, Rafique Dada and Paramjit Patwalia argued in favour of the reference, and Senior Advocates Arvind Datar, Shyam Divan, Gopal Sankaranarayanan, Pradeep Sancheti, BH Marlapalle and Siddharth Bhatnagar argued against the same.
In the previous hearing, Senior Advocates Mukul Rohatgi, Kapil Sibal, CU Singh and others had argued for the reference of the matter to a Constitution Bench.
Senior Advocate Dr. AM Singhvi commenced his arguments by referring to the Janhit Abhiyan judgement, wherein a Bench headed by Chief Justice of India SA Bobde had referred the pleas challenging reservation under Economic Weaker Sections to a larger Bench. He highlighted the submissions of Attorney-General KK Venugopal, who had argued against the reference of the matter.
Singhvi further referred to cases such as MR Balaji v. State of Mysore and State of Kerala v. NM Thomas, and submitted that Balaji was contextually about Article 15(4), while Indira Sawhney focused on Article 16.
The Court was then apprised by Singhvi of the State of Punjab v. Davinder Singh& Ors judgement, which was pronounced on August 27 wherein a 5-Judge Bench headed by Justice Arun Mishra referred the issue of whether sub-classification was permissible within SC-ST Reservation to a larger Bench.
Additionally, the reference by a 5-Judge Bench headed by then Chief Justice of India Ranjan Gogoi in the Sabarimala case was also submitted before the Court to underline the principle underlying Article 145(3).
"There are similar overlapping issues and 28 States are present with over 50% reservation. On this ground, there should be reference of the matter herein to a larger Bench", submitted Singhvi.
Senior Advocate Paramjit Patwalia then began his submissions and contended that the main issue in the case was that the rule of 50% ceiling could not be violated.
"The focal point in the Janhit Abhiyan case was the breach of ceiling, and the same issue has arisen in this case. If that was referred, then this case should also be referred. Whether the breach is sourced from a Constitutional amendment or a legislation, it should not be distinguished. Further, the interpretation would have wide-ranging ramifications, therefore it must be referred", stated Patwalia.
Senior Advocate Rafique Dada also argued on this point. Advocate Sudhanshu S. Choudhuri also presented similar arguments by placing before the Bench the cases of State of Andhra Pradesh v. P. Archana Reddy, and submitted that when the case had come up before the Supreme Court, it had been referred to a larger Bench.
Choudhuri further submitted that Court could relax the strict rules enumerated in Indira Sawhney in extraordinary situations. To buttress this point, Choudhuri cited the T. Muralidhar Rao case.
At this juncture, Justice Rao informed the Counsels that merely citing case with respect to references would not be in their benefit as the only point of argument here was limited to Article 145(3) and there was a question of Constitutional interpretation.
Before moving on to the Counsels on behalf of the Petitioners and Applicants, Senior Advocate CU Singh reiterated the possible erosion of the federal structure if the matter was not referred to a larger Bench.
Senior Advocate Arvind Datar commenced his submissions on behalf of the Petitioners and stated that the issue of reference being advocated by the Respondents was merely a delaying tactic.
"The 50% limit is a Lakshman Rekha and the only State at that time to cross the limit was Tamil Nadu", submitted Datar in order to rebut the submission of Sibal who had stated that 28 States had breached the 50% limit. He further averred that the Application itself was premature as the matter at hand was limited to the validity of the Socially and Economically Backward Classes Act, 2018.
"This entire Application is premature. If you feel that the SEBC Act, 2018 falls foul of Indira Sawhney, that is the end of the matter. Now, all these Counsels, including those for Maharashtra who are asking for revisiting of the judgement, had other submission before Bombay High Court".
Therefore, Datar submitted that the only issue before the Court was regarding the validity of the SEBC Act. Datar then read out the Proviso to Article 145(3) and averred that there was no need for the Court to go into the interpretation of Article 342A, which would automatically put an end to the matter.
He submitted that only Tamil Nadu had breached the 50% limit, and that Rajasthan's breach was pending before the Jodhpur Bench of the Rajasthan High Court. Further, every other State which had crossed the limit had only done so after the 103rd Constitutional Amendment with regard to the EWS Reservation.
Datar also posited that the Davinder Singh judgement had no relevance in the instant matter as the current issue was related to socially and economically backward classes, and the SEBC Act, while Davinder Singh pertained to SC/ST. He also stated that P. Archana Reddy could not be cited as it was regarding Muslim Reservation.
Datar went on to cite the M. Nagaraj judgement wherein the Constitution Bench had further cemented that the 50% limit could not be crossed.
"My submission is that if 50% is there, then there is no need to refer it to a larger Bench. Once Indira Sawhney has laid down the law, and cemented it further in multiple judgments, there is no need to go into this. This is only a delaying tactic, and I request your Lordships to take up the matter at the earliest because people's jobs are at stake", concluded Datar.
Senior Advocate Shyam Divan then commenced his arguments. He apprised the Court of the various Commission Reports, such as Kalelkar, Mandal, Justice Khatri Commissions, amongst others, had stated that Maratha Community was a forward community.
"Even recently, the Maharashtra State Commission came to the same conclusion. After 60-70 years, you cannot say that a community has slid backwards."
Divan argued that the matter had to be heard on September 1, as scheduled before, and then only it could proceed. At this point, a discussion ensued regarding the difficulty in conducting physical hearings, and Justice Rao informed the Counsels present that they would ensure that everyone's interests were protected, but practically the matter would not be heard physically in the coming week.
Senior Advocate Pradeep Sancheti began his submissions and stated that he concurred with Divan and Datar, and that cases of Davinder Singh and Janhit Abhiyan had no relevance in the instant matter. Further, there was no case with the State Government and the tinkering of the basic structure here.
Senior Advocate Gopal Sankaranarayanan then proceeded to argue before the Court and submitted that the SEBC Act included the Maratha Community and the entire 12% of reservation was accorded to them. Additionally, their insertion in the Central list under Article 342A could only be done by the President.
"This is the 8th time a reference is being made to an 11-Judge Bench. Something we haven't had in 18 years. And they are yet to make substantial arguments as to what is wrong with Indira Sawhney. The only question that arises is whether the 50% aspect is a basic structure norm, and that has already been referred to the Constitution Bench".
Sankaranarayanan concluded his arguments by submitting to the Court that a provision which had stood the test of time for 6 decades and had been reaffirmed by a 9-Judge Bench could not be tossed merely because of the capricious view of a Respondent who had not even challenged the Constitutional amendment.
Senior Advocate BH Marlapalle sought to supplement the arguments of Datar and Divan. Then Senior Advocate Siddharth Bhatnagar argued that the 50% limit had been blindingly laid down in Indira Sawhney. He further submitted that the Commission reports showed that the Maratha Community "perceived" itself to be backward. He also raised the point of splitting of the hearing into different stages under Article 145(3) and backed this with the case of Rao Shivbahadur Singh.
Advocate Amit Anand Tiwari also argued against the reference and cited the Shah Faesal case to convey that there existed no point of conflict in law and therefore, reference was not necessary.
Advocate Dr. Gunratan Sadavarte concluded the hearing by submitting to the Court that the State of Maharashtra had not come to the Court with clean hands. By referring to the Chebrolu Leela Prasad Rao judgement, Sadavarte averred that if Scheduled Tribes could not get more than 50% of reservation, then there was no way that the "powerful and influential" Maratha Community could avail the breach in ceiling limit.
"All of this is nothing but a game against citizens by powerful Marathas. This reservation is only a communal reservation, and only to prolong the hearings, they want to refer it to the Constitution Bench", stated Sadavarte.
He finished his arguments by informing the Court that Dr. BR Ambedkar's observation that reservation should not be majoritarian had been quoted in the Chebrolu Leela Prasad Rao judgement, and the same had been accepted by the State.
On that note, the arguments of the Petitioners came to an end. The Court will take up the Rejoinder arguments on the next date of hearing.
In June 2019, the Bombay High Court had upheld the validity of reservation granted to the Maratha community by the state government under the socially and educationally backward class category (SEBC) in government jobs and educational institutions.
However, the Court has held that 16% reservation is not justifiable and ruled that reservation should not exceed 12% in employment and 13% in education as recommended by Backward Commission.
The Division Bench of Justices Ranjit More and Bharati Dangre dismissed the petition filed challenging the Maratha Reservation Act (Maharashtra State Reservation (of Seats for Admission in Educational Institutions in the State and for Appointments to the Posts in the Public Services under the State) for Socially and Educationally Backward Category (SEBC) Act, 2018 (SEBC Act)) passed by the State Legislative Assembly on November 29, 2018 granting reservation for Marathas.
Post Maratha Reservation, the total reservation in Maharashtra effectively increased from to 52% to 68%, way past the 50% ceiling set by the Supreme Court.
The Court held that 50% ceiling for reservation can be exceeded under "exceptional and extraordinary circumstances" and observed that the Maratha reservation was based on justifiable data submitted by the Backward Commission.