Read Time: 12 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 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”). 

The matter today was listed for arguments by Sr Adv Shyam Diwan followed by Sr Adv Mr Gopal Shankaranarayan & other Counsels appearing for the appellants/petitioners. 

Today’s hearing commenced with Sr Adv Shyam Diwan completing his part submissions from yesterday. 

Before making his first major submission for the day,  Divan read the provisions introduced in the Constitution (One Hundred and Second Amendment) Act, 2018 “Amendment Act,2018”) & quoted State of Punjab v. Devender Singh,2020. He then submitted that under Article 342 A, no notification was issued by the President to include the Marathas in the list of Backward Classes nor there was any consultation with the National Commission of Backward Classes. 

He then referred to the National Commission for Backward Classes Act, 1993.

At this juncture, the Bench intervened and posed a question to Sr Adv Shyam Divan: There is a list mentioned in Section 2(c) of the NCBC 1993 Act. What does this list mean? Is this list confined to the Central List ? The 1993 Act has been substituted by Constitutional Provisions now.

Abdul Nazeer,J: There is some significance of the word "Central List" mentioned in Article 342A. You have to explain that. What is the purpose of the use of the Central List? We have to find that. You have to elaborate on that. Bombay HC judgement has held this point deliberately. 

The Bench: Is the State denued of its power to identify the Backward Classes after the implementation of Article 342 A? 

To answer the questions posed by the Bench, Divan firstly submitted that the use of the expression “Central” was indicative as far as deletions to the state list was concerned but the State Legislature was not denuded of its power to any extent. With this he concluded his submissions. 

Thereafter, Sr Adv Gopal Sankaranarayanan followed since the Bench was dealing with interpretation of the word “Central” in Article 342 A(2). 

With regards to the submissions concerning interpretation of the word “Central”, Sankaranarayanan firstly submitted that the word was included to comply with the directions issued by the nine judge Bench in Indira Sawhney v. Union of India,1993. 

 At this juncture, the Bench intervened & asked Sankarnarayan:Please tell us why "List(s)" is plural here. 

Sankarnarayan: List(s) means lists by various states. Every State prepares its own list.

Bench: Please tell us your interpretation of Article 342 A

Sankaranarayanan: The 1st is what is the role of State List with respect to the list prepared by the Commission. There is only 1 list. The reason as to why Central has been put there is to adhere directions in Indra Sawhney. Power of State is not denuded if the State is consulted for inclusion of backward list.

Sankaranarayan while making his second submission, he relied on Article 338B(9) to submit that any inclusion or exclusion in the list of SEBC is to be confirmed after consultation with the National Commission of Backward Classes. He further substantiated his argument by stating that after the implementation of Article 338 B, the State of Maharashtra had no power to constitute Gaikwad Commission. He further contended that the State did not consult the National Commission for Backward Classes for inclusion of Marathas in Backward Classes.

“Article 338 B has taken away all the aspects of state with regards to Backward Classes. All the matters related to this are only to be referred to the National Commission for Backward Classes which has given a Constitutional Recognition.”, Sankaranarayan contended while concluding. 

Sr Adv Siddharth Bhatnagar contended that , “If Art 342A(1) is r/w Art 342A(2), then there are still 2 lists. The President is notifying the list on behalf of the State and issuing a notification. List under Article 342A(1) is unamendable.”

Sr Adv Pradeep Sancheti made the Court aware of the fact that he would be dealing with the Gaikwad Commission Report that included Marathas in the list of Backward Classes. Sancheti submitted that the challenge with regards to the report was on three basic fundamental areas which were Collection of the sample of data or the criteria adopted by the Commission for collection of data, Analysis of the data & the methodology that was adopted by the Commission for collection of data. 

He further substantiated his point by submitting that, 

“The data collection was incorrect, the analogy drawn was incorrect & this report concluded that 32% are Mararthas. The Bombay HC granted stay to the report. When they collected data, they only included 43,000 people which was very less as compared to the Rane Commission Report.”

Sancheti also contended that the Commission’s mandate was to only consider Maratha Community as SEBC & made no attempt to find as to who were SEBC. He further submitted that, 

“Their sample size is very small, which was 2,00,000 but only interviewed 43k people. Out of 43k people only 950 were from urban areas. Rest were from urban areas.This is not even 0.2% of the population of Maharashtra & on the basis of this they say that a quantifiable data has been submitted.  If we take 950 as correct, & multiply it by 4.6 % this would be at the highest of 5,000 which is 0.1%.  This sample size is so small that it cannot lead to any conclusion or even form the basis of any conclusion.”

The matter is now listed for submissions by Sr Adv Pradeep Sancheti which would be followed by Sr Adv Dr Rajeev Dhawan & 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)

Also read Argument Analysis: [Maratha Reservation]: March 15,2021