Maratha Reservation: Supreme Court Issues Notice To All States, Will Consider Whether Mandal Commission Judgment To Be Re-looked

Noting the submission of the Maharashtra government that the principle question that has arisen is the interpretation of the 102nd Constitutional Amendment and that it will impact the legislative competence of all States, the Supreme court on Monday issued notice to all the states in the Maratha reservation matter, adjourning the hearing to March 15.A five-judge bench headed by Justice Ashok Bhushan observed that AG K. K. Venugopal is also of the opinion that the states be heard. The bench took the view that the issues which arise for its consideration are whether the Indra Sawhney judgments (Mandal Commission Case) requires a relook by a larger Bench, whether the said decision covers the issue of the Maratha Reservation, whether the 102nd Amendment affects the federal structure, depriving the states of their power in respect of the SEBCs.Senior advocate Mukul Rohatgi, appearing for the state of Maharashtra, sought to make some preliminary submissions on behalf of the state- "As per the order of reference of September 9, 2020, the singular question framed under Article 145 as regard the ambit and the scope of article 342A. It was the case of the petitioners that Article 342A has been interpreted in their favour by the High Court, contrary to the decision. The rights of all the states in the nation with respect to reservation under Articles 15 and 16 stand denuded! The Backward Classes Commission of the states will become redundant otherwise"The bench assured Mr Rohatgi that it shall frame one question in this behalf."I am sure Your Lordships will frame it. But the point in my application is that every state is affected by the interpretation of Article 342A. Every state is denuded of its legislative competence under Articles 15 and 16. So every state must be heard", pressed Mr Rohatgi"We don't have to hear every state on this. We have to comprehend and interpret the Article. You assist us on this", observed Justice Bhushan."But this has been a practice of Your Lordships wherever states are concerned. I have listed some 15-16 cases, where there were issues of much lesser importance and the court had added the states as party. This matter involves a breach of the federal status. It cannot be heard appropriately without the presence of all the states in the nation. It is not a simple matter or a trivial issue. It would be completely inappropriate to proceed with the hearing without the existence of all the states before the court", urged Mr Rohatgi."We know it is a matter of importance. So we will clarify that if any state wishes to intervene, we will hear it. If any state wishes to add anything to what has been submitted by you, we shall permit them", noted Justice Bhushan."The states can't come in a day or two days or three days. They have to be called. They have to seek instructions. They have to understand the position as it prevails...You may seek the AG's opinion in this behalf", argued Mr Rohatgi.To supplement his arguments, senior advocate Kapil Sibal, for one of the applicants Rajendra Datey Patil, advanced that this is a "very, very serious issue" – "In fact there are 16 states in the country which are affected by this at present. If Your Lordships say that no state can set up its reservation commission and it is only the commission of the Centre which shall decide and that their power of reservation has been taken away by the 102nd amendment…If Your Lordships leave it to the states to intervene if they wish to, that would be inconsistent to the practice that has prevailed in this court since 1950. This interpretation of Article 338B and 342A is a substantial question of law. The states are as much involved as the Centre. They have a vital vested interest. It affects the entire federal structure. Your Lordships must issue notice to them. Otherwise, every question can be decided by this court without the states, because Your Lordships have the power"Senior advocate P. S. Patwalia, also for the state of Maharashtra, pointed out that though the reference is with respect to the 102nd amendment, the side of the petitioners will raise the issue of 50% ceiling on reservation –"there are many other states which have similar Acts, which are been challenged in different forums, including the High Court as well as this court. Each state has a stake. There are 27 states at present which have more than 50% reservation. The states should be given notice!"In his turn, AG K. K. Venugopal advanced, "As far as the state of Maharashtra is concerned, there are two major issues – there is the issue of the 50% ceiling. Your Lordships have by a majority of 6:3 (in Indira Sawney) agreed that other than in exceptional cases, the reservation cannot exceed 50%. Here, it is 72%, after the reservation for the economically weaker sections is added. So the bar comes into operation. So far as the Maharashtra government is concerned, they will have to satisfy the question of exceptional circumstances""As regards Article 338B, as on...

Maratha Reservation: Supreme Court Issues Notice To All States, Will Consider Whether Mandal Commission Judgment To Be Re-looked

Mehal Jain

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