Maratha Quota Case, Day 4 : Rights Of States On Backward Classes Not Affected By 102nd Constitution Amendment, AG Tells Supreme Court

A 5- Judge Bench of Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat heard the submissions of the Petitioners as well as the arguments put forward by Attorney-General KK Venugopal.

In today's hearing, Senior Advocates BH Marlapalle and Preetesh Kapur, and Advocates Dr. Gunratan Sadavarte, SB Talekar, RK Deshpande, Amit Anand Tiwari and Jaikriti S. Jadeja made their submissions on behalf of the Petitioners.

Post the completion of the Petitioners' submissions, Attorney-General KK Venugopal commenced his arguments by informing the Court that he would confine himself to the interpretation of the 102^nd Amendment.

He then referred to the 9-Judge Bench Indra Sawhney judgment and stated, "When a specific direction is issued by a 9-Judge Bench, and the Government shows every indication of implementing it, is it conceivable that an Amendment to the Constitution will be made, by which States are denuded of the right to identify backward classes?"

The AG submitted that it was inconceivable to him that any such amendment could be brought into force the effect of which would be that no State would have the power to identify socially and educationally backward classes. He averred that in order to deprive the State of its power under Articles 15(4) and 16(4), an amendment would be required.

"Articles 15(4) and 16(4) from the very inception are recognized as a source of power for the State as well as the Centre to identify SEBCs. Without identification, one cannot make provisions for advancement of SEBC. No such amendment has been made in any manner directly. You cannot indirectly modify the impact of a Constitutional provision".

The AG also highlighted the matter pertaining to the genesis of reservations and submitted that one of the unfortunate vices of the power given to the State under Articles 15(4) and 16(4) was that before elections, new groups were being introduced and votes were being obtained.

Coming to Article 342A, inserted as a consequence of the 102^nd Amendment, the AG submitted that the intention of the Parliament was to only cover the Central List. However, the amendment was not intended to affect State powers of inclusion and exclusion of backward classes in lists.

"As far as Articles 15(4) and 16(4) are concerned, they would remain untouched and undisturbed by Article 342A; both are compartmentalized. States, in pursuant to Indra Sawhney, are also required to have their own State Commissions as I mentioned before", conveyed the AG.

Therefore, it was submitted by the AG that the State's powers remained untouched as a result of the Amendment and the sole intention was to define the term "socially and educationally backward classes".

"Rights of the States remain untouched 'expressly' and will continue. See Article 366; it says 'unless the context otherwise requires'".

In response to the Court's question on the fact that a plain reading of Article 342A raised the issue of the "Central List" in relation to States, the AG responded that there were Public Sector Undertakings, offices of the Central Government in States which invariably meant that employment of public servants from the Union would take place.

"In these cases, the Union won't take list of State Governments. Centre also has educational institutions such as IITs and IIMs in various States. For this, Central Lists are needed. This list will apply to Central government public corporations such as railways. They won't blindly accept identification of State governments".

The Court then asked the AG if a uniform standard for backward classes could be brought about via Article 342A as in the case of Marathas, they were not considered backward vis-à-vis the Union.

The AG responded to this query by submitting that the State Government had an independent power which had not been touched by Article 342A.

"Article 342A exclusively deals with the Central Government's competence to identify SEBCs for its own purposes, but for Central Government jobs in States, the Centre has its own list. In every State, there is a State List for State institutions and educational institutions".

It was also averred by the AG that to construe the 102^nd Amendment as a provision which was excluding the States from exercising their power was not justified as no attempt had been made to amend Articles 15(4) and 16(4) which encapsulated the power to identify backward classes and this was inherent in both the Centre and the States.

"Unless you amend Articles 15(4) and 16(4) and denude States of the right to identify backward classes, it would not be a right to construe Article 342A as denuding State's rights".

On that note, the AG concluded his submissions. He will continue his submissions on the petition challenging the 102^nd Amendment next week.

The matter will resume tomorrow with Senior Advocate Mukul Rohatgi initiating the arguments on behalf of the Respondents.

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.