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The Five Judge Constitution Bench comprising Justice Hemant Gupta, Justice Nageswara Rao, Justice Ashok Bhushan, Justice S. Abdul Nazeer and Justice Ravindra Bhat have continued hearing the pleas challenging the Constitutionality of Maharashtra State Reservation (of Seats for admissions in Educational Institutions in the State and appointments in the Public Services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 (“Impugned Act”). 

Senior Advocate Siddharth Bhatnagar made rejoinder submissions. He argued that in the Indra Sawhney case, for eight out of nine judges, the views on the 50% limit on reservations is very clear.

“At the highest, without prejudice, even if we accept this (Rohatgi's) argument, it would have no impact on the 50% rule, because the greatest common measure of agreement (in Indra Sawhney) is on 50% being the binding rule.” – states Bhatnagar.

Senior Advocate Bhatnagar informs the court that the principle of "common measure of agreement" has been applied by Justice Vivian Bose in a 1950 judgment and that only Justice Pandian opined that the 50% rule is not mandatory. He further adds that Nagaraj judgment has removed any doubt because it has approved the 50% rule.

Then, RK Deshpande made submissions on events concerning the passage of Maharashtra SEBC Act. He was assisted by Advocate Ashwin Deshpande.

“Doctrine of extraordinary circumstances evolved in the Indra Sawhney case cannot be made applicable to a ruling, dominant community.” Senior Advocate BH Marlappalle makes submissions to supplement Senior Advocate Pradeep Sancheti.

He further adds that, “Cabinet of Maharashtra has 42 ministers. 21 of them are from the Maratha community...Maratha community has never been recognised as OBC by any state government. The demands that they should either treated as OBC or equivalent to Kunbi has been considered and rejected by three State commissions and two national commissions”

The Court asked the Attorney General K.K. Venugopal if he had any submissions to make to which the AG replied that as regards to the validity of the Act only and that is,

“…the issue hinges upon whether the Court interprets Article 342A (102nd amendment) to have taken away the powers of the State in identification for reservation for backward classes. Union of India has filed its affidavit in a connected matter relating to Tamil Nadu where Judgment has been reserved. UOI has expressly said that 342A is restricted to identifying reservations for the purpose of central government institutions. Today it is perhaps a hypothetical issue. If a judgment is delivered, then perhaps the issue will crystalize”

The Court replied to this and stated that, “there is a challenge today. One can't assume it will go this way or the other. Your argument is that as the amendment exists, it does not take away state power. But if it goes the other way... you will have to say something.”

“There is an express provision in the Constitution dealing with "backward classes". so far as backward classes are concerned, if it is traceable to Article 16 (4), it can't be a subject matter of "State Public Services". The Supreme Court 9 judges have expressly identified the source of the power as existing in 16 (4)as well as 340. It is exclusive. It is a rather desperate attempt to invalidate a constitutional amendment...  Can it be said that this amendment makes a change to the public services of the state?” – submits Attorney General.

Further, AG argues that the 102nd Constitutional Amendment cannot be held to be unconstitutional. He concludes arguments stating that he will submit the written submissions on Monday. The Solicitor General adopted the submissions of the AG for State of Gujarat.

The Hon’ble bench reserved the judgment in challenge to constitutionality of Maharashtra SEBC Act which extends reservations in public employment and education for the Maratha Community and on the question of whether Indra Sawhney needs to be reconsidered.

Case Title: Jaishri Laxman Rao Patil v. The Chief Minister & Ors (Civil Appeal No. 3123/2020)