[Maratha Reservation] Argument Analysis DAY 5

“Times have changed. So many things have happened by passage of time. When all this happens, the question is whether the pie of Backward Class should still be stuck at 50%?”, Mr Mukul Rohatgi

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 Respondent’s submissions by Sr Adv Mr Mukul Rohatagi & was followed by Sr Adv Paramjitsingh Patwalia

Today's hearing commenced with Sr Adv Mr Mukul Rohatagi making his submissions at the beginning of which he informed the Bench that he had prepared a Chart with a bird's eye view of everything to deal with his submission related to Issue No 1, which was whether the judgement Indra Sawhney v. Union of India & Ors 1992 Supp 3 SCC 217 requires reference to a larger Bench.

To support his contention that Indra Sawhney v. Union of India & Ors requires a re-look, Mr Rohatagi's first submission was that as per para 31 of Indra Sawhney, Mandal Commission itself recommended reviewing the entire scheme of identification of backward classes after 20 years. It was also argued that the data of 1931 based on which Report of Mandal Commission was premised is extremely old & obsolete.

Rohatgi further informed the Bench that Indra Sawhney explicitly dealt with reservations under Art 16(4) & did not deal with reservations under Art 15(4) or 15(5).

To substantiate his submission concerning the challenge of the Impugned Act, Rohatgi relied on the Apex Court judgements to submit that DPSP's act as a defence if a law is challenged on the ground of being violative of Fundamental Rights as DPSP's are not subordinate to Fundamental Rights but are to be read hand in hand.

"Defence is available not only to show that it is reasonable but also that the same has been made as per the mandate of DPSP. In other words, it is armour behind the infantry. If a law is made as per the mandate of 39, then it would be Constitutional. If the mandate comes from DPSP for the upliftment of weaker & backward, then 50% does not matter.", Rohatgi submitted.

At this juncture, the Bench intervened & remarked : You're saying if any law is made in consonance with DPSP's & the same is violative of Fundamental Right, then it is valid.

Rohatgi: Yes. If the same is invalid, then mandates under DPSP are to be read in addition. Indra Sawhney should have seen the mandate under DPSP & then should have come to the conclusion. That's my argument.

To argue that Indra Sawhney requires a relook, Mr Rohatgi thirdly contended that the findings of Indira Sawhney had been chipped away by way of Constitutional Amendments that the Parliament enacted. Reference was made to Art 16(4A), Art 16(4B) that deal with catch up & carry forward rule, respectively. He also relied on the 103rd Constitutional Amendment. Art 15(6) & 16(6) was inserted that granted 10% reservation to EWS to submit that the Parliament has adopted economic criteria to identify backward classes.

Fourthly it was also argued that interpretation of Art 342 A in light of denuding the state with its power of identifying Socially & Educationally Backward Classes would have ramifications on all the States. In this context, Rohatgi argued that “As per Indra Sawhney, State Backward Classes Commissions were set up. All the states have their separate list of OBC. Commissions will be rendered redundant if the states are denuded with the power of Identification. This would also amount to the breach of federalism & breach of a federal structure.”

He, therefore, concluded by stating that since there has been no uniformity with regards to the status of the 50% Constitutional Limit, the judgement should not only be revisited on particular aspects but by taking into consideration a holistic approach.

Mr Rohatagi in his submissions also threw light on the methodology that should be adopted while reading any judgement consisting of majority & minority views.

“I will read as to how a judgement is to be read. Refers to judgement of Justice Madan Lokur in NJAC Case. Then I will refer to different voices of Indira Sawhney. It is a judgement of 9 judges divided in 3 groups. It is not a judgement of 8:1 majority.”, Mr Rohatagi submitted. He further substantiated his argument by referring to Art 145(5) to submit that the judgement should bring in some clarity which is also the object of stare decisis.

“After discussion amongst judges, there should be 2 views. There should be 2 views. Majority & minority. The Judges should not form different views. In Kesavananda Bharati (Writ Petition (civil) 135 of 1970) after the hearing thirteen judges sat in Court 1”, Rohatagi further added. Reliance was also placed on State Of Punjab vs Hiralal & Ors 1971 AIR 1777, Akhil Bharatiya Soshit Karamchari Sangh (Railway)Represented v. Union Of India And Ors 1981 AIR 298.

Sr Adv Paramjitsingh Patwalia, before making his submissions, informed the Bench about the fact that he would restrict his submissions on Issue No 2 & 3 & would, in brief, deal with further questions. He also informed the Bench that he would make his submissions based on the Gaikwad Commission Report that pertains to relevant paras as per which the State considered it appropriate to include Marathas in the category of Socially & Educationally Backward Classes.

Patwalia, to prove the sanctity of the Gaikwad Commission Report's findings, firstly submitted that every aggrieved petitioner was fully aware of the Constitution of the Commission and the members. Still, until now, there has been no challenge concerning the Committee's constitution. To further substantiate his argument, Patwalia submitted that,

"The Gaikwad Commission Report seeks to provide relief to the Maratha class that has been suppressed for a long time. The Chairman of the Commission, who was a Judge, was fully aware of all these judgements. Therefore to say that this is a report which is SELF SERVING is extremely unacceptable. Their findings are based on the book "History of Maratha".

To make his second submission, Patwalia relied on Supreme Court judgement in State Of Andhra Pradesh gAnd Ors vs U.S.V. Balram Etc 1972 AIR 1375 in which sample size was not considered of relevance for determining a new caste to be added to the list of Backward Classes. To substantiate his arguments, Patwalia further made the Bench aware that 21 public hearings called "JAN SUNWAI" call for expert's opinion to examine the social & economic backwardness of Marathas.

On Monday, Sr Adv Paramjitsingh Patwalia will continue with his submissions & would be followed by Sr Adv Mr Kapil Sibal.

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

Also Read: Maratha Reservation: Argument Analysis DAY 4