“Presence Of A Community In Far Flung Area Does Not Entitle Them To Reservation As Per Indira Sawhney” [Maratha Quota ] Argument Analysis: Day 6

The Five Judge Constitution Bench comprising Justice Hemant Gupta, Justice Nageswara Rao, Justice Ashok Bhushan, Justice S. Abdul Nazeer and Justice Ravindra Bhatt 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 Paramjitsingh Patwalia & Sr Adv Mr Shekhar Naphade on behalf of the State of Maharashtra & Sr Adv Kapil Sibal on behalf of the State of Jharkhand.

The hearing for the day commenced with Sr Adv Paramjitsingh Patwalia making his submissions to answer the questions raised by the Bench on the previous hearing.

Concerning the Bench's first question regarding the procedure adopted to conduct the public hearing, Patwalia submitted that apart from publications by way of notices & in newspapers, the information was also posted on Social Media platforms. He further contended that many people came & made their representations when the hearing was conducted in CBD, Belapur in Mumbai. There has been no complaint concerning an unfair procedure adopted for the public hearings.

He also made the Bench aware of the educational qualifications & the caste of the members of the Commission headed by Retired Justice Gaikwad.

"I want to remove the impression that the gentleman was a Maratha.", Patwalia submitted.

At this juncture, the Bench intervened & remarked,

Mr Patwalia, Gaikwad, belonged to the caste of Kunbi. We are not going to assess the correctness of the Commission based on their caste.

For his submissions as to why Marathas belonged to the "Extraordinary Circumstance", which permitted for breach of 50% limit, Patwalia argued that, "In case of Marathas, the population was too huge & the available quota too small. Sharing the well-established reservation limit with Marathas would have been catastrophic. The only way to achieve a harmonious solution was by crossing the ceiling. The Report was accepted by the members & was unanimous. There was no dissent. The state accepted the Report & the same was passed in the Legislative Assembly."

Patwalia, concerning the criteria mentioned of "far-flung areas", contended that the same was only illustrative & not exhaustive. He also submitted that the window for exceptional circumstances must be left open.

Bench: Merely because a community is in a far-flung area, it will not entitle them to the reservation as per Indra Sawhney. Other conditions also need to be satisfied. Such remoteness led them to be out of mainstream life & they also have conditions peculiar to them.

Patwalia: The judgement doesn't say that 50% cannot be crossed at all.

Hemant Gupta, J: It does say that 50% can only be crossed in exceptional circumstances.

"Reservation would have become a complete illusion & this was done to make it real & not illusionary", Patwalia remarked while concluding.

Sr Adv Mr Shekhar Naphade submitted that the Supreme Court's judgment in MR Balaji v. the State of Mysore was full of various contradictions and that the 50% Constitutional Limit that was set up in MR Balaji was not dealt in detail in Indira Sawhney v. Union of India.

In his opening statement, Sibal submitted that “This is a case of great importance because what you will decide would decide the future of millions & millions of people who belong to the backward class. This is the first time a court is looking at these issues after Indra Sawhney.”

Sibal made the Bench aware of the course in which he would make his submissions. He submitted that he would make his submissions in light of Art 15(4) & Art 16(4) & further contended that, “You cannot look at Art 15(4) & Art 16(4) in abstract. Because reservation is not an abstract concept”. His further line of argument would be for the issue of who can fix limits as percentages per se were not within the scope of judicial review.

Bench: What about the balance between Art 14 & reservation.

Sibal: I will address that.

In his first submission, Sibal, while arguing concerning the demarcation between Art 15 & Art 16, Sibal contended that,

“Parameters of Art 15 is completely different from the parameters of Art 16. Art 15 deals with empowerment & the ability to become eligible for the job. Art 16 deals with employment & the ability to get the job.”

He further substantiated his argument by submitting that, “Breach of 50% is not relevant for Art 15. How can any Court fix 50% for Balaji? Apart from Balaji, that is bad law, which is the judgement cited. All other judgements deal with Art 16.”

To make his submissions with respect to the change in “social dynamics,” Sibal referred to the statistics of the 1931 census, data of OBC in various states as per the 2011 census. He, therefore, submitted that the concept of equality differed from one state to another and that there was no straitjacket formula for the same.

Sr Adv Mr Kapil Sibal would continue his arguments tomorrow.

Case Title: Jaishri Laxman Rao Patil v. The Chief Minister & Ors (Civil Appeal No. 3123/2020)
Also Read: Maratha Reservation: Argument Analysis DAY 5