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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") for the Seventh Day today. 

The matter was listed for submissions by the States on the issues framed by the Bench in respect of which notice was issued. Sr Adv Mr Kapil Sibal, SGI Tushar Mehta, Adv Manish Kumar for the State of Bihar, Adv Karan Bharihoke for the State of Punjab, Sr Adv Dr Manish Singhvi for the State of Rajasthan, Sr Adv Dr Abhisekh Manu Singhvi for Respondent No 3 & 16, Sr Adv Dr Niranjan Reddy for State of Andhra Pradesh & Sr Adv Mr Jayant Muth Raj for State of Tamil Nadu made their submissions. 

The hearing commenced with Sr Adv Mr Kapil Sibal resuming his submissions from yesterday. 

Sibal’s submission with respect to the fact as to whether Indira Sawhney required reconsideration was that , “It is therefore necessary to look at Indira Sawhney afresh. There are two ways to deal with it: 

1. It's not necessary to refer if the Bench says that 50% is not Laxman Rekha. If its hostile discrimination, then we'll strike it down.It must be referred to large Bench if your lordship says that 50% is Laxman Rekha. 

2. 50% never came up for consideration.”

Bench: Without hearing the States, can we say that every state that has exceeded the 50% limit is not right in doing so? We have to examine that as per the peculiar features. 

Sibal: All I am saying is that we are not covered as per Para 810.

Bench: We are saying that 810 is not exhaustive. The conditions laid down are indicative. 

Sibal: All I am saying is 50% should not be considered as Laxman Rekha.

With respect to his submissions for Art 342 A, Sibal’s first submission was that the state had Co Equal powers as per Art 15 & Art 16 & that any exercise of the Union could not encroach upon the state’s power to identify backward classes. He further emphasised by submitting that, 

“ *for purposes of this Constitution* meant “for purposes of Union” and this was necessary to maintain the federal structure. Therefore there was no question of saying that 342A violates power of identification. The power to identify is vested in the state by Constitution & is justified by many judgements including Indira Sawhney.”

“The country awaits the wisdom of this Court in light of the issues raised. "The Constitution is a living document & it cannot remain static. Change is inherent in every decision making process. Sibal remarked while concluding. The change will come when your lordships look into the Constitution not as a Document but in its spirit.”, Sibal remraked while concluding. 

SGI Tushar Mehta, while adopting the submissions made by Ld AG KK Venugopal, submitted that the 102nd Amendment Act did not denude the State of its powers to identify Socially & Educationally Backward Classes.

At this juncture, Justice Rao intervened and posed a question to SGI: We get this, but why has the Centre not issued any notification to this effect under Art 342A? It says that the President, in consultation with the Governor, has to do so. Can you make this a dead letter by not issuing a notification for all times to come? 

Justice Bhatt: Does it mean that there is a blank state as of now? Existing lists have to be incorporated into the amendment. 

SG: Existing lists continue. 

Bench: Why is the existing list not part of the amendment itself? 

SG: We will answer all these questions when the Bench hears the challenge to the 102nd Constitutional Amendment,2018. 

Bench: Okay, we will hear from you again later. 

On behalf of the State of Bihar, Adv Manish Kumar submitted that the National Commission for Backward Classes Act,1993 was repealed by way of the 102nd Constitutional Amendment Act,2018 with a saving clause.

At this juncture, the Bench intervened & remarked, "If that's the case, then why do we have Art 342A? The power of inclusion & exclusion will always remain. There would be no vacuum. What was the purpose to include Art 342 A?"

Kumar: The list that existed will remain alive. As far as inclusion & exclusion is concerned, then Art 342A will have to be considered. There is no effect on the power of State as per Art 342A. For backward & highly backward classes, the State uses the list prepared by them. Power to legislate for identification comes from Art 246 r/w art dealing with public services.

Kumar also submitted that the states under Art 342A were not denuded of its power of identification. He concluded by stating that because of the 10% reservation for EWS, the number of seats earlier available for the backward class has been reduced. The open category has been reduced to 40%. Previously, they were 50%, and they used to come into the general category's merit list.

The Counsel representing the State of Rajasthan, Sr Adv Dr Manish Singhvi, submitted while citing various provisions of the Constitution such as Art 16(4), Art 246D(6) that dealt with reservation of Backward Classes that the term Backward Class of citizens was much more expansive than Socially & Educationally Backward Classes & that even transgender people were included as Backward Classes. 

He further argued that Indira Sawhney required reconsideration & further submitted that, 

"There were 52 communities in 1994. Now there are 91 communities. We have a 28% reservation. 21% constrains our power to do social justice, which is part of Preamble. There is nothing fixed. Our Constitution is a living document."

AM Singhvi's first submission was that the material underlying the 102nd Constitutional Amendment, 2018 made it crystal clear that the power of the State was never intended to be circumscribed or inhibited.

 "They accepted & rejected amendments by giving this justification."

In this context, AM Singhvi further relied on the relevant parts of Kalpana Mehta v. Union of India (2018), Demarcation of Backward Classes in the National Commission for Backward Classes Act,1993 & Maharashtra State Commission for Backward Classes Act,2005, Report of the Select Committee dated July 3, 2017, to submit that Art 342A did not have the power to dilute, circumscribe or inhibit the widest power of the State granted to it under Art 16 of the Constitution of India,1950. 

He also substantiated his argument by contending that, "There has not been any list till now after Art 342A also where the centre purports to specify a list which is intended to be for Western, Southern, Northern India."

"If & when Central List is provided, then it may be possible to consider in case there is absolute collusion. Given the use of the word CENTRAL in 342A & given the mandate of 2 lists & state list before Central List, it would be wrong to denude State of the powers.", AM Singhvi contended. 

Sr Adv Mr Niranjan Reddy representing the State of Andhra Pradesh, firstly submitted that 16(1) granted exemption from the reservation, but Art 16(4) was exhaustive. He further contended that there was a dichotomy as Para 810 of Indira Sawhney v. Union of India, 1992 granted a leeway. Still, on the other hand, Para 808 & 809 shut the doors for exceeding the limit of 50%. 

Reddy also submitted that the thumb rule of 50% treated unequally as equals which were further violative of Art 14 & Art 16(1). 

"No list has been notified until now. If things had to remain in a vacuum, then there was no need to enact another amendment. Central list until so notified would be an amalgamation of various states.", Reddy argued while concluding.  

On behalf of the State of Tamil Nadu, Muth Raj made the Bench aware that 94.6% population belonged to the Backward Class & also explained how the cap of 50% came in the way for implementing the legislation that granted 69% reservation in Tamil Nadu. 

The matter tomorrow is listed for Sr Adv Mr Jayant Muth Raj's submissions for the State of Tamil Nadu & Sr Adv Mr Shekhar Naphade. 

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