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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”). 

The matter today was listed for submissions by Sr Adv Mr Pradeep Sancheti & was followed by Sr Adv Dr Rajeev Dhawan & further followed by Sr Adv B.H Marlapalle. 

The hearing commenced with Sr Adv Pradeep Sancheti making his submissions with respect to the errors in the sample size & data collection in the Gaikwad Commission Report that could not be completed yesterday.  

The Bench asked Sancheti to first deal with the relevant paragraphs of the Gaikwad Commission Report that declared Marathas eligible to fall into the exception of “EXTRAORDINARY CIRCUMSTANCES”. 

Sancheti’s first submission after reading the relevant paras of the report as asked by the Bench was that the Report based on the census conducted in 1872 came to the conclusion that Marathas were covered under extraordinary circumstances. He further submitted that although the figures state that they were Backward, they certainly based on this could not be covered under extraordinary circumstances. 

“Today when they say that backwardness is 80%, you will see that they are far above. The submission that they will be left behind & there has been historical injustice is flawed. There is no quantifiable data on the fact that Marathas & Kunbi are equal.”, Sancheti submitted.

His second submission was that the method that was adopted by the Commission to conduct was neither systematic nor scientific and the data was completely haphazard & unrealistic. 

“The Commission only surveyed 950 people from the urban population of 550 crores. There should be a representative sample. The law is clear with respect to collecting samples. They have only collected data from some people in an area consisting of 20 or 30 lakh population.”, Sancheti submitted to further substantiate his argument while concluding. 

The first major submission of Dr Dhawan was that the issue at hand could easily be resolved by the regime that existed from 1950 till 2020 & there was no need to refer to the judgement of Indira Sawhney v. Union of India to a larger Bench. In order to substantiate his submission, Dhawan contended that the aspect of reference to the larger Bench had two aspects namely Procedural & Substantive.

“This argument that times have changed & we must change with it holds no substance. Everyone nowadays wants to be a part of SC, ST, OBC & SEBC. This aspect has changed. I point out to ask, what exactly changes have further taken place that requires revisiting Indra Sawhney. Every single decision has been followed in Indira Sawhney. No new principles have arisen to exceed the Constitutional Limit of 50%”, Dhavan submitted. 

With regards to the interpretation of Art 342A which is the central question of debate in this matter, Dhawan contended that there could be a consolidated list that could be divided into various areas & that Central List was not one list & that the same could be divided state wise. He also submitted that the states have not been denuded with their power of implementation after the enactment of Art 342A. 

“The power of reservation is still with the states. We must not assume that states would not be consulted if a class is identified.”, Dhawan contended. 

Dhawan further continued his submissions with regards to Art 342 A & submitted that a wide interpretation should be given (1) as a narrow interpretation would be contrary to the aims of the Constitution. “Consider 2 circles. Wider circle is Backward classes & within that circle is SEBC. The problem is the inner circle is covered but the bigger circle is not. This would be a narrow interpretation. Therefore the outer circle by purposive interpretation is to be included in 342A.”, Dhawan contended. 

Before concluding, Dhawan further submitted that, “Nothing prohibits the Parliament from framing a consolidated list & applying it state wise. Any further additions will have to be by the Parliament. today significant change is, if there are any changes to be made in the list. It will be by Parliament alone.”

While citing part IX & Art 256,257,258,258A of the Constitution of India, Dhawan while concluding submitted that, “As long as it's enabling, we will examine its exercise. They have to be made in an emergency. There is too much politics in all this. We work keeping into consideration the aspect of Cooperative Federalism. If the state doesn't do the job, the Union can ask them to do the Job.”

It was submitted by Sr Adv B.H Marlapalle that until the verdict in Indra Sawheny v. Union of India was delivered in 1993, the Centre did not prepare any Union List of Backward Classes. Until then, the States had their Commissions & based on the recommendations of the Commission, the States granted reservation, Marlapalle further argued. 

Marlapalle also submitted that there was no need to enact the “Impugned Act” since as per the Gaikwad Commission Report, Marathas & Kunbis were same & Kunbis were already included in the list of Backward Classes. 

Although the matter was listed for submissions by Mr Mukul Rohatagi & Mr Kapil Sibal, but since one of the standing Counsel who visited Mr Rohatagi’s office diagnosed to be infected with CoVID, his office is closed for Sanitisation & they would now make their submissions on Monday. Ld Attorney General KK Venugopal will commence with his submissions tomorrow. 

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