The Supreme Court 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 in the 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 Mukul Rohatgi, Kapil Sibal, CU Singh and others argued for the reference of the matter to a Constitution Bench.
Senior Advocate Mukul Rohatgi commenced his submissions. He argued that the Bombay High Court had upheld reservation exceeding the 50% cap. In that context, he had raised two points.
First, the ceiling of 50% could not be exceeded as per the 9-Judge Bench decision in Indira Sawhney, which allowed for breaching of this limit only under exceptional circumstances. His second point was that the 102nd Constitutional Amendment led to the formation of the National Commission of Backward Classes (NCBC) and 103rd Constitutional Amendment brought in reservation for Economically Weaker Sections (EWS). Rohatgi submitted that the latter had taken the reservation limit above and beyond 50% in many States.
"In Indira Sawhney, it was held that Articles 15 and 16 were mostly caste-based, and that reservation could not be on economic factors. But, 103rd Amendment brought in EWS Reservation."
Rohatgi apprised the Court of the 5th August 2020 Order in the Janhit Abhiyan case wherein a 3-Judge Bench headed by Chief Justice of India SA Bobde had referred the challenge to the EWS Reservation in multiple pleas to a Constitution Bench. Rohatgi submitted that in the instant plea, there was yet again a breach of the 50% limit and therefore, the matter should be tagged with the EWS Reservation case and referred to the Constitution Bench.
Another point raised by Rohatgi was whether Article 342A had the capacity to allow the State to make reservations exceeding the cap, and that this was the first time this question had come up.
Rohatgi then informed the Bench that he had framed 9 questions for the consideration of the Constitution Bench. One of the questions was whether the ceiling laid down by the 9-Judge Bench in Indira Sawhney was no longer relevant due to the 103rd Amendment and, for the consideration of this point, there was a need for a reference to a Bench larger than 9-Judges.
Another question was that if Articles 15 and 16 were a part of basic structure, and there was a clash with Articles 338 and 342, would the latter Articles survive.
"In my respectful submission, there can be no doubt that these questions have to be referred to a Bench of 5 Judges to consider the 102nd and 103rd Amendments, along with our case. The matters are overlapping to a substantial extent. The larger Bench will decide the questions; which to frame and how to frame", concluded Rohatgi.
Senior Advocate Kapil Sibal then began his submissions and stated that the reservation on economic criteria had been squarely rejected as it violated basic structure, and that if it had to be considered, then it should go to an 11-Judge Bench.
"In Indira Sawhney, the population criteria was based on the 1991 census. Now, it's 2011 caste census, which is still not out. Almost 30 years have passed since Indira Sawhney."
Sibal submitted that the Bombay High Court had found that 85% of the population belonged to backward communities in Maharashtra, and that the figure was true for many States. He averred that the 50% criteria had evolved through judicial decision-making and Indira Sawhney was interpreting Article 16(4).
"Article 15(4) is empowerment and that is different from Article 16(4). Both are different. In Maharashtra, a huge percentage is backward, so how will empowerment apply? 15(4) and 16(4) have to be interpreted in the context of empowerment, which has not been done so far", submitted Sibal.
A list of 28 States was presented to the Bench by Sibal wherein the reservation exceeded 50%.
"The substantial question of law here is that any judgment rendered by this Court will affect all those States. So, notice should be given to those States", contended Sibal.
Sibal referred to an Andhra Pradesh High Court order in the case of T. Muralidhar Rao wherein a 7-Judge Bench of the HC had struck down a legislation for reservation. The matter had then come up before the Supreme Court.
Sibal stated, "If the 10% reservation based on EWS is upheld, it can only be upheld if Indira Sawhney is looked up by an 11-Judge. Because then 50% will have been breached anyway. All States are affected by this as all are above 50%. These are long-term issues that need to be decided".
The argument of Sibal was concluded on the point that the HC's decision stating that the State Commission did not have the power to decide reservations if the National Commission existed was contrary to the federal structure of the government as it gave the Union the power to decide reservation issues in States.
Senior Advocate PS Narasimha, argued for the consideration for the Preambular aspect of Fraternity to be considered and examined by the Court.
Senior Advocate Chander Uday Singh, submitted that he supported the reference of the matter to a Constitution Bench under Article 145(3) of the Constitution of India. He informed the Court that there existed a substantial question of law and that the Written Submissions of the Petitioners too referred to the same.
"There is a substantial question of law which has never been determined by the Supreme Court; it is virgin territory. While they are now opposing the Reference, but all the contentions of the Petitioners also contain substantial questions of law. Of course, they are saying that this is covered territory, and if it's res integra, it makes sense. But, it is not the case here".
The Bench, on that note, has listed the matter on Friday for conclusion of the arguments on the point of Reference to a larger Bench.
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.