Thread by @barandbench

Constitution bench of #SupremeCourt to hear the challenge to Maharashtra State Reservation for Socially and Educationally Backward Classes Act for providing educational and employment reservation to Marathas

#MarathaReservation

Senior Adv Arvind Datar is making submissions.

Datar: Question was raised whether Indra Sawhney has to be revisited...There is not a single judgment in our research that has doubted the correctness of Indra Sawhney judgment.

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Datar: Reference to 11 judges, if at all, will be in the context of 50% reservation..

Court: Their argument is only that. Their argument is with respect to 50%

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Datar: Decision in Indra Sawhney was by 9 judges

He notes that matter will have to be referred to 11-judge bench if correctness is doubted. He adds where matters were referred to 11-judge bench in the past reason was where some serious doubts were expressed

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Datar recounts that between '66 and '67, there were only 11 or 12 judges in the Supreme Court. Virtually the full court sat in Golaknath's case, he adds.

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Datar recalls some more examples where Bench of 11 judges sat to consider cases, including RC Cooper case, Madhav Rao Scindia cases

Datar: There were cases that were so important that almost the entire court sat.

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Court notes that the reason why 11 judge bench sat in Cooper's case was because it was post the Golaknath case.

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Datar recounts that in Indra Sawhney original memo of 27% for SEBC was upheld by the Bench 6:3, 8/9 Judges upheld 50% rule (that 50% limit should not be crossed), 8/9 said creamy layer must be there

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Reference to a larger bench should only be on compelling reasons, Datar reads from a judgment.

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Datar: A very high threshold is place before a case of 7 Judges is referred to 11-judges

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Datar refers to excerpts from Indra Sawhney case to argue why decision should not be revisited after so much trouble has been taken.

Since the decision has been taken after so much deliberation, there is no need to revisit the 50% limit rule, Datar argues.

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Datar: There is almost near unanimity on the 50% limit rule... If not 50%, would it be 70-80-...? Are we going to proportionate representation? All those questions arise.

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Datar submits that while 4 Constitutional amendments were introduced after Indra Sawhney judgment, "Parliament for 30 years has left 50% alone."

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Court: One of the arguments of Sibal has made is that 103rd amendment for 10% EWS reservation - that itself indicates that parliament has enhanced it beyond 50%. What is your response?

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Datar responds that reservation for economically weaker sections (EWS) is not based on socially backward class. It is for economically weaker sections across the board, irrespective of who you are, he adds.

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Datar: 103rd amendment underlies our argument. if at all 50% should be amended, it can't be done by this bench or 11-Judge bench; it has to be done by parliament.

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Datar refers to Ambedkar's observations that if a government reserved 70% of the positions in government jobs, leaving only 30% for the general population, then this would violate the principle “that there shall be equality of opportunity”.

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He said that the seats to be reserved must, therefore, be confined to a minority of seats, Datar recounts further.

Datar: Till NM Thomas (case), no one says you can cross 50% limit

He adds that this limit can only be amended through Constitutional amendment

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Responding to Court's query, Datar submits that Indra Sawhney is not to restricted to Article 16 (4) of Constitution alone, but to reservation as a whole

Datar: Otherwise it would be paradoxical to say that it will be 50% for public posts, but for education, it would be 60-70%

Datar adds that the Parliament had also understood that this judgment would apply to Article 15 (4) of the Constitution (empowering State to make special provision for the advancement of any socially and educationally backward classes or for Scheduled Castes and Scheduled Tribes)

Datar: Both Articles 16 (4) and 15 (4) are in the context of what we call affirmative action where the State can make special relaxations for SEBC in 15 (4) and backward class citizens in 16 (4)

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Datar reads a judgment: Article 16 (4) applies to a much larger canvas (backward classes)... if something applies to the larger group, it will necessarily apply to the substratum (socially and educationally backward class under Art 15 (4))

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Datar continues reading the judgment which states that Article 16 (4) takes into it SC, ST and all other backward class of citizens including SEBC

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Datar: It reinforces the point that the limit of 50%, which plays in the context of Article 16 (4), has to necessarily apply to Article 15 (4) also.

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Datar: Indra Sawhney was dealing with the larger issue of reservation. Before it, there were cases of educational institutions before them... all of them were referred to in the Indra Sawhney case.

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Datar argues that Court made it clear in Indra Sawhney that the case also applies to Article 15 (4)

Datar: If it applies to the larger (Article 16(4), it applies to the smaller (Art 15 (4))

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Datar: Indra Sawhney has not been doubted in any decision

Court: Except Thomas

Datar: No, NM Thomas is before Indra Sawhney.. In fact, they discuss Fazil Ali J.'s judgment in the Thomas case

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Datar: We have identified 10 cases, where the High Court has recognised 50% (limit) and struck down the laws

Indra Sawhney case has been upheld in at least 4 Constitutional Judge Benches, Datar adds.

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Datar: We could not locate any judgment which referred to any inconsistency that requires a revisit of Indra Sawhney

Court: That is why they want to persuade this bench to doubt

Datar: Point is, that doubt should precede the application... doubt should be by some other SC Bench

Datar reads "first principle" by BR Ambedkar. He submits that right to equality is a meta right, a right above all rights. Articles 15, 16 are intended to promote equality.

To change the 50% limit is to have a society not founded on equality, but based on caste: Datar reads

Court: Your argument is that since they can come in the general, it is not relevant to proportionate?

Datar: Yes...

Court notes that in Article 16 (4), the phrase used is for "adequate representation"

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Datar recalls different States introduced reservations shortly before Model Code of Conduct kicked in for elections.

Reference is made to 10.5% reservation for Vanniya Kula Kshatriyar in TN this year, Inclusion of Nadar Christians in OBC by Kerala in 2014, two days before MCC

Among other eg.s, Datar also refers to eg. of Madhya Pradesh where OBC quota was extended from 14 to 27% 1 day before MCC during 2019 Lok Sabha Elections

In the backdrop of political considerations, Indra Sawhney case should not be revisited, Datar argues.

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Datar: Even after Indra Sawhney judgment, backward classes meant socially and educationally backward classes and other backward classes declared by govt of India in relation to backward classes...

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Datar: In 2000, the National Commission for Backward Classes expressly rejected a request for including Maratha in backward classes.

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Datar reads a judgment

Datar goes on to argue: There is no distinction between Articles 15 (4) and 16 (4) for laws enacted after Indra Sawhney judgment

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Datar reads out various provisions of the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act under challenge.

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Datar, as he reads, notes: No other community except Maratha is included in the definition of SEBC... What applies to OBC applies to SEBC also under this Act...

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Court asks if there is any horizontal reservation - for eg. PWD Act has 4% horizontal reservation or for reservation for women

Datar: This is just a clear vertical reservation of 16%. I don't know if they have made any further horizontal reservations within this category

Datar: Our principal argument before Bombay High Court was that after Indra Sawhney, you cannot have crossed the 50% limit

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Datar: In remote areas of Maharashtra, extra 2% has been made for special category of backward classes.

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Datar: It would be completely unacceptable to state that Maharashtra is a "far-flung remote area" and has some special needs. You would be putting all logic on its head... That was not the intention of Indra Sawhney.

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Datar: To avoid rigidity, permit some free play, for some tribal areas in North-East, it has gone beyond 50% - that is required there. But certainly not for Maharashtra, Tamil Nadu, Karnataka - relatively prosperous states

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Datar argues that Parliamentary amendment is required to extend such a benefit (beyond 50%) to "far-flung" areas

Court: That window (for extending reservation in far-flung areas) was for States. how can you say that it is only when parliament decides...?

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Court: It is for the States.. That argument, we are not very sure that it can only be done by parliament...

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Datar agrees that the submission made may be too broad.

He clarifies that the State can utilise the window depending on territory and special features of that State without requiring a Constitutional amendment.

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However, this would depend on the features of the State, he argues.

Datar: What I meant was in the context of Maharashtra... If Maharashtra wanted to say that they are extraordinarily backward, then they should have taken the Constitutional amendment route

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Datar refers to Maharashtra Government's stance that since 30% of the population is Maratha, they should get 16% reservation in public jobs and education.

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Datar goes reads judgment to state that such "proportionate" reservation is only available for Articles 330, 332 and that too for a limited period. These provisions deal with reservations in Lok Sabha & State legislatures proportionate to population. This is tempoarary, he adds

Datar: Article 16 (4) (wrt reservations in public employment) is not an exception to 16 (1) (equality in matters of public employment)...

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Datar: Article 16 (4) is important but equally important is equality under Article 16 (1)... Article 16 (4) is a means to achieve 16 (1)

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Datar: This (50% limit) is the Lakshman Rekha that has to be followed by every State legislature in making reservations to public posts and education.

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Datar further notes that Indra Sawhney Judgment made a very limited exception to the general rule of 50% limit, allowing relaxations in "extraordinary situations", involving "far-flung areas."

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The relaxation is for populations of such far-flung areas on account of their being outside mainstream life, for factors peculiar to them, because of which they need to be treated differently, Datar further reads.

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In giving such relaxations in extraordinary situations for such populations in far-flung areas, "extreme caution has to be exercised", Datar reads.

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Datar: Who are they referring to? Not Maharashtra, Tamil Nadu Karnataka - but far-flung remote areas... they require special treatment

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The 50% limit rule is an "impregnable fortress", which "cant be crossed except for a small window: Datar

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Court cannot consider a prosperous and leading State like Maharashtra to fall under the category of such a window or "extraordinary" situation, Datar argues.

Therefore, the SEBC Act has to be struck down as unconstitutional: Datar

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What is the 'extraordinary situation' (in Maharashtra's case)?: Datar

He points out that Maharashtra's stance is that "Marathas are backward and that they form 30% of the population is the 'extraordinary situation'"

Datar argues that this is not correct.

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Datar reads from judgments

Datar: Indra Sahney is always understood to mean having application to Article 15 (4) also, any special provision.

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Court breaks for lunch. Arguments to continue post-lunch.

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Maratha Reservation: 50% limit is 'Lakshman Rekha'; should be followed by States in making reservations: Arvind Datar [LIVE from Supreme Court]

barandbench.com/news/litigatio…

Bench re-assembles. Court resumes hearing

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Datar refers to a Judgment - Vikas Kishanrao Gawali vs The State Of Maharashtra, dealing with a challenged to Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.

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Datar continues reading from the judgment, points out that it had stated that the 50% limit should not be breached.

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Datar argues that a 50% limit on reservations is a constitutional limitation that has been recognised by the Supreme Court.

Datar: Wherever there is an affirmative action, the overall limit of 50% applies.

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As to where this 50% limit is found in the Constitution, Datar contends it is found in the "brooding omnipresence of Article 14, that the right to equality is applicable everywhere."

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Datar adds that while the judgment cited is not binding on the Constitutional Bench, since it is rendered by Bench of less number of judges, the judgment's reasoning merits acceptance.

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Datar refers Bombay High Court judgment upholding #MarathaReservation, observations on how the Maratha community is being stated to be a backward community since 1902.

Datar: No discussion about "far-flung" area, remote area, what is the nature of the area - nothing.

Datar argues that the Bombay High Court Judgment is not sustainable, that it is contrary to Indra Sawhney judgment and deserves to be set aside.

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Datar: The statement that Maratha Community has been backward since 1902 is completely baseless.

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Datar: Even in 1980, the total population of Scheduled Castes plus backward class was 70 % - even then the reservation was only 50%.

He adds that it cannot be argued today that the Maratha population is 80% and so 50% (limit) is wrong

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Datar: Mandal Commission in 1980 has declared Maratha Comunity to be forward - 2% forward

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Datar refers to the National Commission for Backward Classes' rejection of the request to include the Maratha Community as a backward community in the Central list of backward classes in Maharashtra.

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Datar: Long story short, the argument has consistently been that Marathis are Kumbis are synonymous, and that since Kumbis are backward, Marathas are backward

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Datar refers to conclusions of the National Commission's full bench, wherein it was held:

- Maratha community was distinct from the Kumbi community

- Maratha community was a socially and educationally advanced community

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Datar submits that the National Commission not only found that Maratha is not a socially backward community but also held that it is a "socially advanced and prestigious community."

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Datar adds that the Commission held that the Maratha community is not synonymous with the Kumbi community and that the request to include the Maratha community in the Central list of backward classes for Maharashtra should be rejected.

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Court notes that this ruling may be applicable to the Centre's list, but that the State may still say it can include Maratha community in the State's backward classes list.

Court: They may say this will not come in our way

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Datar responds that in Ram Singh's case, it has been held that the advice of the Commission cannot be ignored except in extraordinary situations

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Datar adds that he is trying to say that in Mandal commission report, the Maratha community was not found backward and "in 2000, National Commission said they were not only not backward but socially prestigious."

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Datar: When the entirety of the nation has progressed, how can 30% of Maharashtra say that they have gone backward?

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Bench loses connection to virtual hearing. Counsel waiting for Bench to reconnect.

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Hearing resumes. Datar refers to a judgment.

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Datar reads from Supreme Court Judgment in Ram Singh & Ors vs UOI, which can be read here: indiankanoon.org/doc/33182715/

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Datar continues reading the Ram Singh case, which was a case concerning reservations for Jats.

Datar: Replace "Jats" with "Marathas" (in the judgment); that will solve the issue

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Datar concludes, summarises:

- 50% limit on reservations cannot be breached
- Bombay HC has not considered this rule, not decided whether there was an extraordinary situation
- After 2000 National Commission report, there is nothing to merit include Marathas in backward classes

Senior Advocate Shyam Divan makes submissions.

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Divan reads out statistics concerning the number of persons from the Maratha community who have been Chief Ministers (13/19 in a certain period), MLAs, IAS, IFS officers etc.

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Divan adds:

- 54% educational institutions controlled by Marathas
- Marathas dominate Universities with 60-75% in management
- 75-90% land is owned by Marathas
- 150/161 milk cooperative societies are chaired by Marathas
- 17/25, 68% medical colleges. founded/owned by Marathas

Divan argues that social and financial status of Marathas has been examined on various occasions till 2013

Each body either found that Marathas cannot be included in OBC or backward class or that they did not deserve reservation, Divan adds

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Divan refers to reports where Marathas have been considered as a forward class.

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Divan refers to National Commission of Backward Classes order which held that Maratha is not synonymous with Kumbi community and that Maratha is not a backward class.

Divan: It wasn't some kind of a flippant, superficial analysis, it was a very detailed consideration.

Divan argues that till 2014, 6 backward classes commissions (3 State and 3 National) did not include the Maratha community as a backward community and it was recognised as a forward community.

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Divan argues that the Maratha community has excelled in every sphere of society - education, government, banking etc.

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Divan argues that you cannot have a situation where after decades and decades of independence, you claim you are sliding back, after having excelled after having used to system to your advantage.

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Divan contends that the Gaikwad report in favour of the Maratha quota is flawed, that it fails to consider Maratha community is politically organised and politically dominant. He argues that such a community cannot be considered backward.

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Divan says that the Gaikwad report failed to consider that various commissions have consistently ruled that Marathas are not a backward community.

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Divan disputes the report's attribution of farmer suicides to the backwardness of the Maratha community, says this was due to a general agrarian crisis and not on account of backwardness.

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Divan also challenges the report's reference to dabbawalas being from the Maratha community as being an indicator of backwardness.

Divan argues that an efficient, wholesome food delivery network cannot be an indicator of backwardness.

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Divan moves on arguing against introducing Maratha reservations in medical PG admissions. He contends that once a candidate holds an MBBS degree, s/he cannot be regarded as "educationally backward."

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Divan: MBBS graduates are quite evidently not educationally backwards... they are educationally forward.

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Divan argues that he is speaking of PG medical courses which are the end of the road, educational qualification wise.

Divan: It ought to be fully on the principle of merit and merit alone... barring general ... most specialities are end branches... no rationality for having reservations in this

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Divan says law has been laid down by 9 judge bench in Indra Sawhney

Divan: Citizens are entitled to predictability and certainty, particularly in fields like medicine.. (SEBC Act) violates Constitutional principles. Controlling decision is Indra Sawhney

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Divan: Any reservation beyond 50% is Constitutionally invalid.

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Divan reads from the judgment in Union Of India vs Rakesh Kumar & Ors to make submissions on exceptions to 50% rule in extraordinary situations. Judgment can be read here: indiankanoon.org/doc/1356187/

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Divan argues that no justification has been offered for saying that there is an exceptional situation for exceeding 50% reservation limit. He argues that the tests laid down in Indra Sawhney's case have not been satisfied.

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Divan to continue his submissions tomorrow. Divan tells the court that he will also submit a supplementary note dealing with questions put today by the Court during the course of the hearing.

Bench rises. Hearing to continue tomorrow.

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