Day 11 Arguments – Constitution Bench

March 26th 2021

Background

In 2018, the State of Maharashtra passed the Socially and Educationally Backward Classes Act, 2018 (‘SEBC Act’) to extend reservations to the Maratha community. Specifically, the State Legislative Assembly granted Marathas 16% reservations in education and public employment.

Various litigants challenged the SEBC Act before the Bombay High Court. After 40 days of oral arguments, the High Court delivered its judgment in 2018. It upheld the Act but reduced the percentage of seats reserved for Marathas to 12% in education and 13% in public employment, as per the recommendations of the Gaikwad Committee. Now, the case has moved to the Supreme Court. A three-judge Bench led by Justice Nageswara Rao heard Special Leave Petitions (SLPs) challenging the Bombay High Court’s judgment. One of the key legal issues was whether the State has the power to exceed the 50% reservation ceiling set by the Supreme Court in Indra Sawhney v Union of India (1992). With the introduction of the SEBC Act, over 70% of seats in Maharashtra are reserved.

The preliminary issue that came up was regarding the need to refer this case to a larger bench, as it involved substantial questions of law around the interpretation of the Constitution. After hearing both the parties, the Court on September 9th, in its brief, non-reportable order, referred the case to a larger bench. On March 8th 2021, the Constitution Bench issued notice to all 28 states. Further, the Bench framed the following six issues that would be argued in ten days of hearing:

 

1. Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc.? 

2. Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case? 

3. Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney? 

4. Whether the Constitution One Hundred and Second Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power? 

5. Whether, States power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India? 

6. Whether, Article 342A of the Constitution abrogates States power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?

 

Petitioners Conclude their Rejoinder

Senior Advocate Siddharth Bhatnagar began with his rejoinder. He provided the context of the Indra Sawhney judgment. The bench had drafted questions to settle disputes on the law of reservations, and this included the question of whether there was a 50% limit. This meant it was a binding precedent. Even if it was not decided in Indra Sawhney, M Nagraj had affirmed it and applied it.

Further, he rebutted the argument that there was no majority on the limit in the case. He cited Justice Vivian Bose in Rajnarain Singh v The Chairman, Patna Administration Committee. There, he read that the applicable rule is the ‘greatest common measure of agreement’. Since eight judges say that the rule does apply, this formed a majority.

Advocate Ravi K. Deshpande reiterated that the 102nd Amendment takes States’ powers to identify SEBCs. He submitted that the Articles introduced mirrored the Articles in place for identification of SCs/STs and this meant the same set of rules applied. Only the Centre had the power to identify SEBCs.

Senior Advocate B.H. Marlapalle apprised the Court of two sets of facts. First, the Marathas were a politically dominant community. Out of 39 unreserved Lok Sabha seats from Maharashtra, 20-21 were Marathas in the last two elections. Currently, 21 out of 42 Ministers in the Maharashtra Cabinet are Marathas. A dominant community could not claim ‘exceptional circumstances’ to breach the 50% limit. Second, he pointed out that various commissions had denied the backwardness of Marathas.

 

Attorney General Responds to the Challenge to the 102nd Amendment

Attorney General KK Venugopal first pointed out that the validity of the SEBC Act was a secondary question. That would arise only if the 102nd Amendment was interpreted to denude States of their power to identify SEBCs. He submitted that the issue should be decided later.

He then rebutted the petition that sought to challenge the 102nd Amendment. The petition claimed that it did not comply with the requirement of ratification from half the States. This is necessary for Amendments that affect States rights. It also submitted that it violated the basic feature of federalism and was liable to be struck down.

The Attorney General reiterated his earlier submissions that the Amendment did not affect States powers. However, he also urged that the requirement of ratification by half the States was not raised. The petition had erroneously suggested that the power to identify SEBCs are under the State List. The source of their powers is under Articles 15(4) and 16(4). The ratification of half the States is not required.

He concluded by submitting that these arguments indicated that there was no valid basic structure challenge either.

 

The hearings concluded and the Court adjourned for Holi break.