Argument Analysis [Maratha Reservation]: March 15, 2021

  • Shruti Kakkar
  • 10:32 AM, 16 Mar 2021

Read Time: 19 minutes

The Five Judge Constitution Bench comprising Justice Hemant Gupta, Justice Nageswara Rao, Justice Ashok Bhushan, Justice S. Abdul Nazeer and Justice Ravindra Bhat have re-commenced the hearing 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”) on a day to day hearing basis.  

Background of the Matter

In the present matter, the Impugned Act u/s 4 granted Reservation upto 16% in Educational Institutions (including private educational institutions) and 16% indirect appointment to public services and posts under the State. The Bombay High Court, while upholding the Constitutionality of the Impugned Act, reduced the quantum from 16% to 12% in respect of Reservation to educational institutions and 13% in public employment. Thereafter, the Appellants assailing the judgement of the Bombay High Court approached the Supreme Court where a Full Judge Bench comprising Justice Nageswara Rao, Justice Hemant Gupta & Justice Ravindra Bhat, while passing interim directions & staying the operation of law on September 9, 2020, referred the matter to a Larger Bench. Thereafter a Five Judge Constitution Bench started hearing the matter & amid the hearing since the matter required interpretation of the 102nd Constitutional Amendment. The Bench issued notice to all the states to allow them to have their say. Further, the Constitution Bench proposed to consider the following broad issues & requested the State to formulate them in their submissions: 

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?

Submissions by Learned Counsels

The hearing today was listed for submissions by Mr Arvind Datar, Counsel appearing for State of Maharashtra followed by Mr. Shyam Divan, Mr. Gopal Sankarnarayan, learned Senior Counsel and other Counsels appearing for the appellants / petitioners. 

The hearing today started with Sr Adv Shekhar Naphade, Ld Counsel for the State of Tamil Nadu seeking extension of time for filing a detailed reply due to elections in Tamil Nadu. While requesting the Bench he made a short submission contending that, “50% is not an abstract number. Our submission to legal principles cannot be decided in abstract.”.

Dr Manish Singhvi, Counsel representing the state of Rajasthan also sought 1 week’s time for filing their reply due to elections in Rajasthan. 

Concerning the Counsel’s request, the Bench permitted the Counsels to file their reply within a week but also made sure that they would not delay the hearing & would commence from today. 

Before making his submissions, Datar informed the Bench that he would be dealing with Issue No 1 & Issue No 2 whereas the other issues would be dealt with by the other Counsels. 

While referring & elaborating on the Judgements in which 11 Judge Bench was constituted, Datar made his first major submission & contended that there was no need to refer to Indira Sawhney v. Union of India & Ors a larger Bench. In this regard, he further proposed that post-Indira Sawhney, no other judgement that has ever challenged the 50% limit. He also submitted that the Parliament to overcome the findings in Indira Sawhney enacted various Constitutional Amendments and if it would’ve felt the need to revisit 50% limit too, the same have been revisited too by the Constitutional Amendment.

As far as the 50% limit is concerned, it has been accepted since 1991. It has not only been applied in Article 15 & 16 but also Art 371 D. Parliament for 30 years has left 50% alone. ”, Datar further argued. 

In this context, Justice Nageshwar Rao intervened & asked Datar: 103rd Amendment is itself the indication that 50% reservation has extended. That's why it needs to be revisited. What is your answer to that ? 

Datar: It only applies in case of Article 16(4) & Article 16(4A) to EWS.103rd Amendment underscores our point. To substantiate as to why 50% come , I will cite Dr Ambedkar's speech of 1948.

Further Datar contended that the Court in Indira Sawhney came to the conclusion of 50% after considering the Judgements in MR Balaji v. State of Mysore, T Devadasan v. Union of India & NM Thomas v. State of Kerala. 

At this juncture Justice Rao intervened and posed a question to Mr Datar: Indira Sawhney only considered Article 16(4) & not Article 15(4). Please address that too.

Datar: With regards to applicability of Indira Sawhney on Article 15(4) also, I first submit that, immediately within an year of the judgement, Parliament understood that the same would apply to admissions in educational institutions as per Article 15(4) too.

Datar: Article 15(4) is an exception to Article 15(1)(2)(3) & Article 29(2). Both 15(4) & 16(4) are in consonance with Affirmative Action.

Further, while referring to the relevant paragraphs of Indira Sawhney, Datar elaborated on the difference between Article 15(4) & Article 16(4). He submitted that, If the larger conspectus of classes come within the bracket of reservation, then socially & educationally backward classes coming under Art 15(4) would be eligible. 

Datar’s second submission with regards to the issue of whether there was a requirement to re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc. it was submitted that the limit of 50% is an essential part of the right to equality. It is a Meta Right & Article 15 & 16 are rights to promote equality further.

With regards whether the Impugned Act, which after amendment in 2019 granted 12% and 13% reservation for Maratha community in addition to 50% social reservation, was covered by exceptional circumstances or not, Datar referred to The Maharashtra State Public Services (Reservation For Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Special Backward Category And Other Backward Classes) Act, 2001 & made his third major submission. He submitted that the reservation in the 2001 Act irrespective of Indira Sawhney granted upto 52% reservation. 

“Special Backward category means socially & educationally backward classes as declared by the government. Maharashtra Govt has understood that 50% reservation is to be applicable to Educational Institutions. Revisiting 50% for Indira Sawhney is untenable. A judgement cannot be nullified by an Act.”, Datar contended. 

It was also submitted that it was not tenable to accept that the State of Maharashtra should be considered a far-flung area with needs. Datar further contended that “Section 16(4) & Section 15(4) will equally apply. Affirmative action is 50% & the State Government can only exceed 50% in special circumstances. While 50% is the rule, beyond 50% is to be applied in extraordinary situations. Far-flung areas require special treatment whereas Maharashtra is not a far-flung area.”

Datar, to further substantiate his submission with regards to the Constitutional Limit of 50%, relied on the Apex Court judgement in Vikas Kishanrao Gawali v. the State of Maharashtra | WP (Civil) No. 980 of 2019 in which the Bench while dealing with the constitutionality of section 12(2)(c) of Maharashtra Zilla Parishad & Panchayat Samiti Act,1961 as ultra vires of the Constitution under Article 243 D & 243 T including Article 14 & Article 16 observed that 50% is the Constitutional Limit for granting reservation. 

Therefore while concluding his submissions for the day, Datar highlighted the fact that Maratha Community is not a synonym of Kunbis & also referred to the judgement of Ram Singh & Ors vs Union of India March 7, 2015. He concluded by submitting that, “The perception of SELF PROCLAIMED BACKWARDNESS cannot be the ground for claiming reservation. Any other inclusion would be a serious abdication of the Constitution.

Advocate Shyam Divan appearing for the petitioner, relied on Kaka Kalelkar Committee Report on Indian Backward Classes Commission (1955), Deshmukh Committee Report (1964), Mandal Commission Report, Khatri Backward Class Commission Report (1996), Justice R.M Bapat Maharashtra State Backward Class Commission Report & Rane Committee Report, 2014 submitted that Marathas were not a part of Backward Classes. 

The matter is now listed for submissions by Mr. Shyam Divan, Mr. Gopal Sankarnarayan, learned Senior Counsel and other Counsels appearing for the appellants/petitioners for tomorrow. 

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