Thread by @barandbench

Constitution bench of the Supreme Court comprising Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and Ravindra Bhat starts hearing pleas on Maratha Reservation which were referred to larger bench by a 3-judge bench.
#MarathaReservation
#SupremeCourt

Senior Adv Mukul Rohatgi: I appear for state of Maharashtra. We had filed an application for modification of order passed in September. Let me tell you that I am not arguing as if it's an intra court appeal. I am making application to vacate order on account of some data

Rohatgi: Apart from merits of reservation, you have to decide that when matter is referred to Constitution bench then it has to be seen if the bench referring it can deal with interim applications.

Justice Bhushan: Bench has dealt with that point

Rohatgi: There are several judgments which state that reference bench cannot look into interim applications and the Constitution bench looks into the matter. The whole thing must be open to the Constitution bench.

Rohatgi: Order passed by bench in September 2020 has reliance on orders where there is difference of views among the bench. In 99 percent of cases I have come across under 145 (3) , my case lies in that zone and bench has referred it to larger bench. This is a question to decide

Rohatgi: Regarding vacation of interim order state of Maharashtra submits.... three judges know it. Two judges are new. A 5 minute birds eye view. In Maharashtra there has been a clamor to provide reservation to Marathas by saying that they are educationally and socially backward

Robatgi: They wanted independent reservation not as part of OBC. Legislation was brought in on 2014 and finally this act was passed in 2018. Assembly approved a report by Justice Gaikwad commission to find out if Marathas constituted a separate class. Its a detailed report

Rohatgi: Justice Gaikwad said Marathas constituted 30 percent of the population and thus needed reservation apart from OBCs. 2018 law gave 16 percent quota in educational and govt service for Marathas based on that report.

Rohatgi: existing reservation in state as on date of commencement of this law was 52 percent and in addition to 52, 16 was added. Matter was challenged in HC. HC did not grant an interim order and decided finally running into 500 pages and held that report was valid

Rohatgi: HC held law was valid even though it exceeded 50 percent which is generally thought to be benchmark as per Indra Sawhney 9 judge bench.

Rohatgi: HC said rule cannot be said it is cast in stone and if there are people who needs to be uplifted then constituiton permits and state government can act on it. It is our view that Indra Sawhney cannot remain cast in stone forever

Rohatgi: The 50 percent limit has been breached number of times. In 1993 Tamil Nadu breached it to 69 percent. We had submitted that it was our constitutional duty to uplift the backward educationally and socially especially due to last 30p years of oppression.

Rohatgi: Oppressed are generally the deprived and poor class..Of course it has a snowballing effect. It depends on facts and figures every 10 years.

Rohatgi: In this background HC decided. Question is of reservation in employment (govt) and in education (both pvt and govt). If more seats have to be created to adjust General category etc without disturbing the quota then certain amelioration measures can be taken

Rohatgi: After HC, matter came to Supreme Court. Order was passed on September 9, 2020.

Justice Bhushan: application you have filed to vacate the interim order then it needs a final hearing.

Rohatgi: I appreciate that. There cannot be any delay. At the time when stay order came, the entire recruitment process for entire 2,185 people had undertaken the process for employment and declared successful. Due to COVID they could not be issued appointment letter

Rohatgi: the data of these students was not before the earlier bench. This data has come now before a month. The 2185 should not face the guillotine of the September 2020 order.

Rohatgi: The order should be modified so that the recruitment process can be completed.

SC: you had said appointments was made for two departments. Wait for some more time. Let us see if the act survives. It has to be immediately heard and decided.

Rohatgi: The 2185 had only last document remaining to be issued. I can make a statement that I can make a post for them like it was in Tamil Nadu.

Justice Rao: How did you conduct this selection after you said you will not appoint anyone apart from the two departments

SC: The next time when court starts hearing it, we can hear it from third week of January on day to day basis.
Such kind of appointment will create unnecessary financial burden on the state.

Justice Sanjiv Khanna: The Tamil Nadu issue is different. That was about something in 9th schedule

Rohatgi: Similar 10 percent EBC reservation is pending before CJI bench

Justice Rao: It is not your case to entertain that. Is there any judgment that a bench referring a case to constitution bench cannot pass an interim order?

Rohatgi: No

Justice Rao: We had given you a full hearing and now you want a vacation of the interim order

Rohatgi: its only for the 2185 people since that was not before the Supreme Court then

Rohatgi: This is a matter for 100s of judgments. This is not a case for virtual hearing

SC: We are dealing with so many cases, we have dealt with so many cases

Rohatgi: Let us get the COVID-19 vaccine shots by January, February and then let's hear the matter in physical court

Supreme Court: You will be the last person to get the shot!

ROhatgi: All of my age and your age will get the vaccines first

#courtroomexchange

Justice Rao: How long can we go in rounds?

Justice Bhushan: Let us fix it for final hearing and start by third or fourth week of January.

Senior Adv Gopal Sankaranarayanan: from petitioners we are fine with #videoconferencing

Senior Adv Kapil Sibal: Several states are there where reservation has exceeded 50 percent limit. Any decision in this case will have impact on Tamil Nadu and many other states. We should collate all matters pending relating to breach of 50 percent limit and hear it together

Justice Bhushan: #MarathaReservation is a separate issue and we need to judge this on the basis of facts of the case.

Justice Ravindra Bhat: you had submitted a chart in court with 12 states. What are exceptions in Indra Sawhney is laid down there

.@KapilSibal : Supposing the bench comes to conclusion that Marathas are backward then the question is can the limit be breached?

Sibal: The data qua Mandal commission has not been updated yet. This case has huge ramifications, the Maharashtra case cannot be decided in isolation.

SC:We permit all counsels to submit their brief submissions. We will look into it. Cite all the judgments and submit in advance

Senior Adv Arvind Datar: Can all submissions be compiled in one volume like in Daiichi case?

Justice Bhushan: Let someone take up this responsibility.

Senior Adv Rohatgi: We will compile all documents. Let Mr Datar tell is what all to include.

SC: you both can work on this.

Kapil Sibal: this case needs a re look at the Indra Sawhney judgment and this needs to be looked into by a 11 judge bench.

Senior Adv Ranjit Kumar: In State of Punjab vs Ravinder Singh, Indra Sawhney has been reconsidered and some paragraphs state how the Sawhney judgment needs to be reconsidered. I can show how this judgment needs to be reconsidered.

Senior Adv Gopal Sankaranarayanan: if they now take a stand that Indra Sawhney needs to be reconsidered then we have to submit complete different written submissions.

SC: we cannot limit the counsels as to what they want to argue. They are free to argue what they want

Senior Adv Gopal Sankaranarayanan: Since it concerns 102nd constitutional amendment and a state issue, notice may be issued to Attorney General KK Venugopal too

Supreme Court: Yes correct, we will issue notice to the AG.

Supreme Court: Maharashtra Government has not been stopped to make appointments. Only not under this act.

Dr Gunatran Sadavarte: A dissent opinion of the Backward commission was not placed before the HC. It should be placed before you.

SC: Mr Rohatgi, please take this into account.

Order: We are of the view that issues raised in these Civil appeals and consequence which follows iys necessary that civil appeals be hard finally and concluded as early as possible. The court is closing for winter vacations on 18th Dec. List these appeals week commencing Jan 25

SC: Common compilation with regard to documents, etc be submitted. Shri Rohatgi and Datar to prepare common compilation of submissions and judgments.

SC: Brief written submissions to be provided by January, 2nd week.

SC: list these appeals and connected appeals on January 25, 2021, for hearing