'We Cannot Take This 16% Reservation Lightly', Says Supreme Court On Maratha Quota[Hearing Day 8]

On the 8th consecutive day of the hearing in the Maratha quota case, a constitution bench of the Supreme Court posed queries regarding the backwardness of the Maratha community so as to justify 16% quota for them as a Socially and Economically Backward Class(SEBC)."We cannot take this 16% reservation lightly", the bench remarked during the hearing.The bench observed that Marathas were represented highly in services. It also said that there were reports that Marathas were doing better than other communities."Can it be concluded from these stats that Marathas are backward?", the bench sought to know. It also remarked that merely because most members of the community are involved in agriculture activities, it does not mean that they are backward.The Constitution Bench of the Supreme Court was holding the 8th day of hearing on the petitions challenging the Constitutionality of the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act which provides for a quota to Marathas in jobs and education.Singh: When I began my practice, there was Justice PB Sawant. Sole Maratha Judge. He was also the first. This community does not have representation. Bench: How many Maratha judges are there in HC now?Singh: There will definitely be more, but it's still be a small proportion.— Live Law (@LiveLawIndia) March 24, 2021 A 5- Judge Bench of Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat was presiding over the matter. The full account of the hearing is given below : 1. Senior Advocate Shekhar Naphade Appearing for State of Tamil Nadu, Naphade submitted that the Indra Sawhney judgment had to be reconsidered. "All judgments after Balaji including Indra Sawhney proceed on the assumption that 50% is the rule and that's a part of the ratio. It is extremely difficult to cull out what's the ratio in the judgement." He stated that the maximum of 50% stipulated in the 9-Judge Bench judgement was not based on scientific data nor on any established and agreed formula. It was further submitted that Article 15(4) did not place any limitation and the field was open. "Article 15(4) has a non-obstante clause. The adequacy of representation has some correlation to the population of the backward classes in relation to the total population. The real question is how is this worked out? Observation of Justice Jeevan Reddy supports my view that 50% cannot be the rule". Naphade argued that the observations in Indra Sawhney that areas had to be "remote and far-flung" in order to form an exception to 50% was a passing remark and not a ratio; it was merely illustrative. On the issue of Article 324A, Naphade submitted that the list of backward classes decided by the President under Article 324A(1) was only restricted to employment in Central government or institutions run by the Centre. Further, taking away the State's powers would entail tinkering of the federal structure which was protected under Kesavananda Bharati. 2. Senior Advocate Mukul Rohatgi Rohatgi, appearing for States of Tamil Nadu, Chhattisgarh and Karnataka, referred to Article 371(J) while arguing that 50% should not be the limit. "If 50% limit is enforced, 371(J) will have to be read into Articles 16 and 15. This is crucial in understanding if 50% is valid or not. It is imperative that these matters are re-examined. 371(J) talks about domicile-based reservation." In making the aforementioned point, Rohatgi submitted that India was a country with an amalgamation of different laws, rules, identities, procedures, and a 50% limit could not be imposed as it was important to consider the changing aspirations and demographics of the country as a whole. With respect to Chhattisgarh, it was averred that the State was truly backward because of remoteness and Naxalism, and that 44% was already accorded to the SC/STs. Therefore, there still existed backwardness and poverty in the State. He also adopted the Attorney-General's submissions that Article 342A only referred to the Central List, and that extending it to the State List would lead to a violation of federalism. 3. Senior Advocate Jaideep Gupta Gupta, arguing on behalf of State of Kerala, contended that a relook of Indra Sawhney was required as much water had flown under the bridge since 1991. "When Indra Sawhney was considered, there was an understanding that only historical backwardness was supposed to be rectified. EWS was not considered at that stage. This cannot be seen as a part of 50%. Amendment to the Constitution is not intended to reallocate the existing 50%. It is supposed to be an addition. After the 103rd Amendment, Court needs to consider whether the cap can remain". On Article 342A, Gupta submitted that powers under this Article were an addition to existing powers and that it was an extreme proposition to state that only the President could ...

'We Cannot Take This 16% Reservation Lightly', Says Supreme Court On Maratha Quota[Hearing Day 8]

Radhika Roy

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