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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 B.H Marlapalle & was followed by other Counsels for the Petitioner/Appellant. Ld Attorney General Shri KK Venugopal also made his submissions. 

Today’s hearing commenced with Sr Adv B.H Marlapalle continuing with his submissions from yesterday’s hearing. 

Marlapalle concluded his submissions by reading the relevant paras of the Bombay High Court judgement that dealt with the aspect of interpretation of 102nd Constitutional Amendment, Art 342 A & extraordinary circumstances by which Marathas were included in the list of Backward Classes. 

Thereafter, Adv Dr Gunratan Sadawarte, Adv S.B Talekar, Adv R.K Deshpande, Adv Amit Anand Tiwari & Sr Adv Preteesh Kapur made their submissions. 

Learned AG KK Venugopal while referring to the order dated December 9,2020 by way of which AG was given Notice & making his submissions clarified the Bench that he would only confine his submissions with respect to the interpretation of the relevant provisions of 102nd Constitution Amendment & would not submit anything with regards to the 50% limit. 

AG’s first submission was that the Parliament would never enact any amendment that would denude the powers of the State to identify the Socially & Educationally Backward Class (“SEBC”). To further substantiate his submissions AG, submitted that there should have been a provision to categorically deal with denuding the States from their power. 

AG also referred to Art 12 of the Constitution to state that both Centre & State are included in the definition of Article 12 & wherever the word State is mentioned, there is no separate usage of the word, “Central Govt” or “State Govt”. 

“The Preamble says Justice: Social, Economic & Political. Both 15(4) & 16(4) are affirmative action. The DPSP's have provisions such as Art 39(a), (c) & Art 46. The Preamble & DPSP’s give direct right to both Centre & State.”, AG submitted. 

AG’s next submission was that the National Commission of Backward Classes Act,1993 got Constitutional status by the enactment of the 102nd Constitution Amendment. Further, he also stated that the State had the power to identify Backward Classes as per Art 15(4) & Art 16(4) and therefore these two provisions stood compartmentalised as the states have their own Backward Class Commission.

At this juncture, Justice Rao intervened and posed a question to AG: Before you read the judgement of paras, If you read 342A(1) reading it along with (2), plain Reading shows that the President identifies the list of SEBC with respect to the State. That is the plain reading of the provision. The question is whether there can only be one list for SEBC. 

AG: According to me, the identification of SEBC by the state govt, does not come into 342A at all.

Bench: Your interpretation might be correct. There is a Central List but the states have the power to prepare their own list.

Bhatt,J: Your argument started with 15(4) & 16(4) to achieve Social Justice. 16(4) was originally in the constitution. It did not include SC. 15(4) was added in the 1st Amendment. The power to identify SC too ought to be with the state. SC's are the most backward. So identification power for states which may have a larger concentration of SC, ST, then the power has already been taken by the State. If that was the intention, there was no need to include 342A & 338B.

Answering Justice Bhatt’s question, AG further submitted that as per Art 342A, the power of identification lied with the Central Government & the identification of backward classes under Art 15(4) & Art 16(4) lied with the State from the very beginning. He further submitted that, Central list would be applicable with respect to the posts in the institutions operated by the Central Govt. 

Bhatt,J: Is it correct that for purposes of the Constitution, the Central list will identify some class but not the state list for the purposes of the Constitution? For the purpose of constitution, Marathas are not backward as per the Union List but for the State they are.Argument was power of inclusion & identification is with the Union but the power of quantum & benefits is left entirely with the state. That is the federal devolution. Is that what is assumed with this? 341 says that the Identification of SC is not with the state but exclusively with the Central by the President.

AG before concluding his submissions: So far as this is concerned 342A mentions the Central List but irrespective of that Union should have the list with regards to the institutions of the Central Govt situated in each State. 

The matter tomorrow is listed for submissions by Sr Adv Mukul Rohatagi. 

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

Also read: [Maratha Reservation] Argument Analysis: Day 3