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5-judge Constitution bench of #SupremeCourt to hear challenge to Maharashtra State Reservation for Socially and Educationally Backward Classes Act for providing educational and employment reservation to Marathas. Senior Adv Shyam Divan to continue arguments
#MarathaReservation

Senior Advocate Arvind Datar had concluded his submissions yesterday.

Read more on his arguments: -

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Sr Adv Divan argued yesterday:-

- 6 commissions have found that Marathas are not backward
- Gaikwad commission report favouring Maratha quota is faulty
- Indra Sawhney case lays down the law (50% limit on reservations)
- No reason for reservations in PG medical admissions

Hearing starts. Senior Advocate Shyam Divan resumes submissions.

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Divan reads out written submissions: After 102nd Constitutional amendment, there is a specific procedure for identifying socially and educationally backward classes...

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With respect to State, public notification has to be issued by the President after consultation with the governor, Divan reads

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Divan submits that after this amendment, under Article 342A, it is only the president in consultation with the governor who can specify socially and educationally backward classes (SEBC).

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While State can make provisions for the benefit of SEBC under Article 15 (4), the SEBC has to be mentioned in a presidential notification under Article 342A after 102nd amendment, Divan submits.

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In this case, there was no presidential notification, consultation with the governor, or consultation with the National Commission for Backward Classes (NCBC) before Marathas were extended the reservation, Divan submits.

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Divan refers to NCBC Central Act of 1993

Court says it has a query, asks Divan to come to Section 2 (c) which defines "lists."

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Court points out that Section 2 (c) of NCBC Act refers to a "Central" list

Court: It was never the intention that they (NCBC) will prepare a list for the states... Article 342A (2) says "Central list", You have to explain all this.

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Divan responds that whether it is the Central or State list, the identification of SEBC has now through a narrower process after the 102nd amendment.

Divan: Identification will now be more narrowly processed, and procedure will now be confined to the constitutional mandate.

Divan: I am not suggesting that actions in the past are impacted...whether, in the state or central list, identification will be centralised (after 102nd amendment). This will be prospective.

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Divan refers to Article 33B of the Constitution which deals with the establishment and functions of the National Commission of Backward Classes

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Divan: The expression "Socially and Educationally Backward Classes" or variations were not constitutionally defined until the 102nd amendment.

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Divan: Although the defintion was inserted only by the 102nd amendment, this expression itself is found in the Constitution in Article 340, plus it was inserted in Art 15(4) in the 1st amendment and the 93rd amendment in Art 15 (5)

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Divan: The expression in Article 16 (4) of "any backward class" is wider in ambit than in Article 15 (4) and 15 (5)

Court: That has already been held in Indra Sawhney

Divan: Your Lordship is quite right

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Divan: Article 340 (Appointment of a Commission to investigate the conditions of backward classes) as we understand it, is not a permanent commission. It is in the nature of an ad hoc exercise. We have given two instances - Kaka Kalelkar commission and the Mandal commission.

Court: Particularly for Marathas, we have the Shyam Sundar commission also...

Divan: Yes, I'm obliged

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Divan: In the context of Article 341 and 342 (dealing with "Scheduled Castes" and "Scheduled Tribes")... in 342A (1), this pertains to identification and the entire process of identification, as we found in the case of articles 341 and 342 was centralised...

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Divan: It was initially to be done by the president and thereafter would be amended by parliament. In our submission, going forward under 342A, as far as the identification of SEBC for all purposes, it may be done only in the manner prescribed under Art 342A

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Court: You have not answered this, why they have used "central list" (in Section 2(c) of the NCBC Act, 1993)

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Divan: The expression "Central" under Article 342 (2) is not to be found in corresponding provisions of.. there are two elements. In adding to the lists (of backward classes) going forward, this Constitutional provision does not seek to undo what has been done in the past...

Divan: Going forward, there can be only one list where are SEBCs are specified.

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Court: Why is the "central list" used (in Article 342A) when it is not in 341 and 342? What happens to the lists prepared by States earlier, will they continue to get reservations in the States at least?

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Court also refers to parting observations in the Indra Sawhney judgment where State, as well as Centre, was asked to identify backward classes.

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Court orally observes that States have been identifying backward classes for years. If there is a change in the regime, there should be more indication, it adds.

Court: Use of "central list" indicates that the same regime is being continued

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Divan on whether State commissions would be denuded of its powers going forward or their role stands effaced after 102nd amendment.

Divan: No, they do not. The purpose of State enactments and state commissions - their role would continue going forward.

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Court: If the state commission has the power to Identify SEBC, this goes contrary to your submissions

Divan: The expression "Identification" is for more than one purpose.

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One purpose is for adding to a certain list. That portion of the power going forward stands denuded (as far as State is concerned). Now we have a constitutional mandate on how SEBC is to be added: Divan submits

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Divan adds: There is another purpose - after a review process, you may have to delete or remove from a state list. That portion continues with the state.

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Divan: It is not that State commissions are effaced. It is my submission, for removal from state lists as far as SEBC is concerned, that remains with the State legislature.

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Court, while posing queries, muses that there is another alternative way of looking at it - that the Centre may formulate principles for adding to the "Central List", while the State has to adhere to these principles for identifying its list

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Divan asserts that the power of identification of SEBCs has to go by the constitutionally provided process under Art 342A after the 102nd amendment.

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Court observes that at first blush, it appears that the Government wanted to bring Articles 341, 342 through Article 342A. It points out that a select committee has said that the state's identification power is not affected.

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Court: We have to look into parliament's intention, whether they want to completely take away the state's power of identification.

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Divan concludes his submissions, reiterates that the State's power of identification only continues insofar as deletion from the SEBC list is concerned and that identification for adding the lists would be under Article 342A.

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Senior Advocate Gopal Sankaranarayanan commences submissions.

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Sankaranarayanan: When the Constitution was enacted in 1950, reservation was only for SCs and STs and only in parliament and legislatures... SC/ST reservations extended every 10 years, and it continues.

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Sankaranarayanan adds that many states, particularly in the South, had backward classes reservations before.

Sankaranarayanan: The phrase "backward class" and "SEBC" had fallen for interpretation very often. This is analysed in many paras of Indra Sawhney

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Responding to qn of whether Article 15 is also covered by Indra Sawhney case, Sankaranarayanan answers: The reference that went to Indra Sawhney 9 judges was specifically with reference to all issues of reservations.

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Sankaranarayanan: A plethora of judgments that were considered and revised were all Article 15 judgments in Indra Sawhney.

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Sankaranarayanan: One of the critical observations in Indra Sawhney is that there is no definition of "backward classes". That has been solved at least to extent of SEBC, making an insertion in Article 366 (clause 26C).

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Sankaranarayanan notes that in the absence of a definition, there may have been a possible dichotomy perceived between Article 15 and Article 16.

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Sankaranarayanan: In 30 years since Indra Sawhney, the lists that have been drawn up across states and centre are only on SEBC basis.

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Sankaranarayanan: While Indra Sawhney majority says that there is a distinction between Article 15 and 16 classes, on the ground, for those lists, there doesn't appear to be a distinction

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Sankaranarayanan: If there were a distinction and it were to be observed by various states, you would have separate lists for Article 15 and Article 16. We have a single list as far as Backward Classes are concerned.

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Sankaranarayanan: When Indra Sawhney case was taken up, thus far there had been reservations only for Scheduled Castes and Scheduled Tribes.

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Sankaranarayanan notes that as far as reservations in public employment for backward classes is concerned, two concerns weighed in the mind of the court:

- There must be inadequacy of representation
- There must be efficiency in services maintained

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Sankaranarayanan: It is perhaps possible that this was weighing the mind of the Court when it gave directions to both Centre and State govt because they thought Centre's reckoning of whether efficiency would be maintained is different...

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Sankaranarayanan recounts the chronology of events preceding the 102nd Constitutional amendment. He refers to a select committee report.

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Sankaranarayanan continues reading the report of the committee, says he will also be reading out relevant dissent notes, reads part of the report which states that the State Commission's role would not be affected by the proposed amendment

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Sankaranarayanan continues reading, reads consultation of States is not excluded, consultation with governor is consultation with States, Art 342A to provide for comprehensive identification of backward classes, ultimate power for inclusion/ exclusion would rest with parliament..

Court asks Sankarayanarayan to read a certain para, says it indicates that the State would exercise unhindered powers with respect to State lists.

Court: That is why they use "state" and "central" lists in the report. The amendment only uses "central" list

Sankaranarayan: Let me concede, that it appears, if I was a member of the standing committee, I would have got the impression that state list would continue... that's clearly the view committee has taken...

Sankaranarayan: Yet when the final report comes out, with rejections of proposed amendments, there are several members who filed dissent notes because they are aware...

Court says those proposed amendments did not see the light of day. It adds that one has to see the cold print of the provision that has been introduced

Court: Tell us what the sanctity attached to the standing committee reports

Sankaranarayanan says he will address this as well

Sankaranarayanan: There are two aspects that arise from the amendments - 1. What is the role of the state lists as determined by the State Commissions so far; 2. Do State Commissions, as indicated by Indra Sawhney, continue or will they be subsumed by NCBC under Article 338B?

Sankaranarayanan gives his view: Clearly going forward, there is only one (SEBC) list. The reason why "central" is put is to get around Indra Sawhney's direction that State will also draw up a list

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Court: If that argument is accepted, this law (SEBC ACT) cannot be passed. it would be beyond State's legislative competence.

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Sankaranarayanan: Exactly, because this comes after the Constitutional Amendment. After the Constitutional Amendment, they (Maharashtra) set up a commission - is that permissible? They inserted Maratha community under SEBC...

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Sankaranarayanan: If my interpretation is accepted, both of these will give way, dehors other arguments on 50% etc.

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Sankaranarayanan says that Article 342A has to be seen in conjunction with Article 338B read with opening remarks of Article 366,

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Sankaranarayanan: For purposes of this Constitution, SEBC can be determined only by the president

Court: Then no caste can be given any benefit if not entered in the central list

Sankaranarayanan: Absolutely.

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Court: No central list has been published so far after 342A... what is the effect of that? So far list has not come. Power of the state would be denuded?

Sankaranarayanan responds that the State's power comes when it is consulted.

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Court: If the argument which is pursued by you is accepted - henceforth, it is only the centre. Do we start with a clean slate? All lists?

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Court: Because there is no saving provision. According to you, the exercise has to be started afresh, like the SC/ST order of 1950. Has the centre started it? It is going to throw the entire thing into turmoil.

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Court: For you, it might be easy in this case, because the inclusion of Marathas was never there (before)... If the interpretation of this provision is as wide as you suggest...

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Another Judge of the Court weighs in: General clauses Act will come, unless there is a specific provision of repeal.. act done under the previous act would continue

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Sankaranarayanan: ... but when the constitution is silent, the question is does the constitution bring a new regime completely. The repeal act would then not matter. I am not pressing that argument, we are here on a narrow..

Court: Let us take it to a logical end

Court: Under Article 366, SEBC is under 342A and no notification is there. If read strictly, no benefit can be given to SEBC till a list is prepared. Can we wait for 10 years and deny benefits extended under the Constitution...?

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Sankaranarayanan: I cannot take a churlish argument like that and I don't need to. Before your Lordships today is the power of Maharashtra to include any group in SEBC. That's a narrow compass. I don't have to widen that and say there are no groups today.

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Sankaranarayanan: Maybe some directions may be necessary that a final list be drawn up within whatever period of time, if my argument is accepted. They may have to replicate...

Court: 2018 act is the narrow decision before us...

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Sankaranarayanan refers to the amended provisions, argues that after the amendment, "If the constitution does not open that door, the state cannot open the window on its own."

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On why "central" has been added in relation to the list under the amended provisions, Sankaranayaranan says there are two possible views.

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One is to distinguish it from the state list. The other view is to emphasise and get around the judgment of Indra Sawhney which involved a direction to draw two lists.

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In Indra Sawhney, with SC/ST, there were no such direction, hurdle, ambiguity or "two lists", Sankaranarayanan argues.

For backward classes, there was a direction to draw a Central and a State list, he adds.

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As such, the use of "Central" was possibly to emphasise that there was only one central list (for SEBC), Sankaranarayan argues.

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Sankaranarayanan refers to how NCBC must be consulted before all major policy decision affecting SEBC by both centre and state under Article 338B

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Sankaranarayanan asserts that Gaikwad commission could not have looked into the issue of Maratha reservation.

Sankaranarayanan: After the constitutional amendment, the union and every state govt must consult NCBC on every policy decision. Did they do that?

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Court has risen for lunch break.

Senior Advocate Sankaranarayanan to continue arguments once court resumes hearing post-lunch

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Hearing resumes. Sankaranarayanan continues submissions

Sankaranarayanan: Insertion of Article 338B is fairly watershed as far as State's powers are concerned vis a vis backward classes..

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Sankaranarayanan: Question is what is the scope of state legislatures after...Article 342A only deals with the identification of backward classes. All other aspects still remain with the states.

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Sankaranarayanan points out that 102nd amendment to Constitution itself or Article 342A is not under challenge.

Sankaranarayanan: No state has filed a suit impugning this provision, the question is only of interpretation.

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If State were today to argue that the federal structure is upset by the 102nd amendment, the court should examine what in the amendment has upset, what essentially does the amendment say? - Sankaranarayanan submits.

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Sankaranarayanan on 102nd Constitutional amendment: It has taken away what your lordships gave to the states (in the Indra Sawhney case).

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Sankaranarayanan: ...."form a commission have lists" (the direction in Indra Sawhney) - that has been taken away and restored, if I may use that expression, with the President and the parliament

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Indra Sawhney case sought to put backward classes commission on par with SC/ST, Sankaranarayanan says.

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Sankaranarayanan speaks on Article 17, recalls when arguments relating to caste discrimination, reservations were made in the 70s, Justice Krishna Iyer had remarked to KK Venugopal,

"You, Mr Venugopal, and your ancestors and all of us are responsible for this discrimination."

Sankaranarayanan submits that this discrimination was sought to be tackled by the constitutional provisions, in the Indra Sawhney case and that this effort continues.

Sankaranarayanan recalls that the majority judgment in Indra Sawhney case rejected the idea that OBC must be on par with SC/ST.

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Sankaranarayanan argues that the 102nd constitutional amendment sought to bring about some form of uniformity and cohesion in extending reservations to backward classes.

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Sankaranarayanan: It remains with the state to choose from the central list, based on adequacy or inadequacy within service... to decide which communities would be given benefit of reservations, what percentage should be granted...

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Sankaranarayanan refers to findings of Rohini Commission on how far reservations benefits have reached intended beneficiaries; terms the findings shocking - almost half the intended beneficiaries were not getting reservation at all, he says

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Sankaranarayanan: Therefore, it may be relevant that we have a uniform list so vagaries of societal changes, political ... may not weigh...if almost half is not getting reservation at all... This is a welcome step for uniformity

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Sankaranarayanan adds that no federal right was given in the first place for States to argue that the 102nd amendment would violate federal rights.

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Sankaranarayanan: Today the Constitution makes it clear that there will be only one central list.

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Sankaranarayanan goes on to argue that there is no need to refer to "external aids" to examine what is the meaning of adding "Central" in Article 342A.

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Sankaranarayanan: Once Art 338B is read and the role of National commission is found, Art.s 366 and 342A is read in context of 341 and 342 - there is no doubt for purpose for the Constitution, wherever SEBC is found, the only power is with the president and thereafter parliament

Sankaranarayanan is reading judgments in support of his submission that there is no need to look at external aids to discern why "central" has been inserted in Article 342A.

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Sankarayananan says he is explaining how constitutional provisions have to be interpreted in light of the "federal" argument.

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Sankaranarayanan: 102nd Constitutional Amendment had one mischief that it was addressing i.e. lack of uniformity in dealing with Backward Classes, which would include SCs/ STs and OBCs

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Sankaranarayanan explains that for ST/SCs there was one list and for OBC there were two lists, which determination being done by states as well.

Sankaranarayanan: 102nd amendment squarely addresses that mischief.

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The Standing committee also talks about how the state continues to have all remaining powers, Sankaranarayanan adds.

Sankaranarayanan: A balance that did not exist has been restored today...As far as Article 342A is concerned, there can only be one list

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Sankaranarayanan moves on to the contention that there is no need to re-visit the 9-judge bench judgment in the Indra Sawhney case. Argues, inter alia, that it has not been explained how this judgment conflicts with Nagaraj, Vasanth Kumar case

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Sankaranarayanan: There is nothing they have showed that there is some error in Indra Sawhney.

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Sankaranarayanan: Their consistent position has been that Indra Sawhney case is right, we are relying on the exception. But if you pull the rug from under feet of Indra Sawhney, it completely falls

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Sankaranarayanan: Can they say Indra Sawhney is wrong when before High Court they said Indra Sawhney is right?

This is just an attempt to unsettle what has been settled, he adds.

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Sankaranarayanan argues that there are two issues, 1. the 50% rule in Indra Sawhney case and 2. regarding the competence of the legislation

Sankaranarayanan: If we succeed on 1, your Lordships may not have to go into the other

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Referring to arguments that 103rd amendment (EWS reservation) paves way for exceeding the 50% rule, Sankaranarayanan counters that the 103rd amendment says a "maximum" of 10% (a ceiling) can be granted.

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Sankaranarayanan: When they say maximum of 10%... they have not suggested that they can cross 50%. Indra Sawhney case would continue to prevail.

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Secondly, Sankaranarayanan argues that the 103rd amendment specifies that as far as EWS is concerned, they are going to get a quota from the Constitution.

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Sankaranarayanan: Only question there is, which is common to Tamil Nadu's case, whether 50% is now a principle part of Basic Structure... whether 50% is part of the basic structure so that Constitution itself cannot cross it

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If you take 27% OBC reservation as a given, add 10% on that - then you would go above 50%. But the Constitution doesn't say 50%...It allows reduction of percentage so the ceiling of 10% (for EWS reservation) can be retained, Sankaranarayanan argues.

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Sankaranarayanan concludes submissions after also arguing that the Indra Sawhney case is not restricted to Article 16 (4) alone and that it covers reservations as a whole.

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Senior Advocate Siddharth Bhatnagar is making submissions now.

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After 102nd amendment to Constitution, Bhatnagar argues that once a list is prepared by the President in consultation with the Governor under Article 342A (1), "that is the list"

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In there are any changes, the State would make a request. The National Commission will consider it, which will be done under Article 342A(2), Bhatnagar submits.

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Bhatnagar: If the central list is to be amended, it has to be done by parliament

Court notes this is about modification of the list.

Court: The question is whether Maharashtra could have passed the act today

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Bhatnagar: There is nothing in 342A that takes it beyond the pale of 341 and 342. When the word "Central" is used in 342A, it is possible that this list will be split-into "Central" list in the manner in which the 1993 (NCBC) Act provided and "State" list..

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Court: That is not reflected in the provision - 1 list or 2 lists of 3 lists. The provision doesn't say anything.

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Court (after Bhatnagar makes some further submissions): Again this is very confusing. Concentrate on the process. 338B is the process (that is the submission).. even if you want to make any changes, you have to go back to the National Commission.

Court: ...The central list is a public notification under 324A (1). If you say there is a central list and a state list, it doesn't make any sense...

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I am not suggesting there are two separate lists. The list contains a so-called central list and a list for the States - two parts to the list. If Maharashtra wants to add Maratha...: Bhatnagar

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Bhatnagar is reading parliamentary debates on the 1st amendment to Constitution.

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Bhatnagar: The 50% rule was never touched.. when the first amendment was being debated... and the first amendment does not do anything to change that.

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Bhatnagar refers to 93rd Constitutional Amendment, reads out para 4 of its objects and reasons.

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Bhatnagar concludes.

Senior Advocate Pradeep Sancheti commences arguments, says he would also make submissions on the Gaikwad Committee report.

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Sancheti says that "Central" list should be viewed as the list that is central to all, in terms of the grammatical, normal meaning for "central"

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Sancheti begins submissions on the Gaikwad Committee report which had favoured granting a Maratha quota.

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Sancheti says Gaikwad report has been challenged on three basic fundamental areas:

- collection of the sample of data or criteria of collection of data
- analysis of data
- the methodology of collection of data.

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Sancheti: Can you say I will go only to the most backward pockets of the State to collect the data? I will submit information to show that this is what they have done.

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Sancheti says that in the Gaikwad report, only 950 persons from an urban population of roughly 5 crores were examined.

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Sancheti: They have not interviewed a single person in the city of Mumbai...maximum education, colleges, govt jobs are obviously in the city of Mumbai, it is also the capital of the state - completely excluded.

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Sancheti goes on to fault the analysis and methodology adopted by the Gaikwad Committee

Sancheti: Marking system is completely haywire...

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While the efficiency of service is a factor to be considered for reservations in public employment under Article 16 (4), there was no consideration of this at all, Sancheti argues.

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Sancheti contends that judicial review can be exercised once it is found that the report is not rational, not objective and not scientific.

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Sancheti reads out judgments on the scope of judicial review in such matters.

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Sancheti notes that the issue of reservations comes every time there are elections. Recalls that another committee had also come out with a finding that Marathas, while not socially backward, was educationally and financially so.

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An ordinance was passed, but Bombay High Court stayed the ordinance on finding that a report such as the one given would not do, after taking note of the small sample size and finding that data collection, methodology, analysis were all incorrect, Sancheti recalls.

Whereas an SLP was moved, the stay continues, and the State was never prepared to go ahead with the hearing whenever it came up, Sancheti submits

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In the meanwhile, in 2018, they start a fresh collection of data through the state commission. This time, they have interviewed only about 43,000 people, 1/10th of what they had in the earlier commission, Sancheti submits

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Sancheti, on the sample size for the Gaikwad commission report: In a population of 5 crores urban population, you have surveyed 0.01 per cent or 1 out of 10,000. I will show why this number... cannot give any quantifiable data.

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Sancheti: The sample size is so woefully small, it cannot lead you to any conclusion.

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Court says it will continue hearing tomorrow.

Court asks Sancheti how much time he would take, if he can wrap up his submissions tomorrow in half-hour.

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Sancheti says he would need some time since there are factual aspects and a 1,000-page report.

Court: We need not go into 1,000 pages.. we are not going into fact-finding, our scope is narrow

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Hearing over. To continue tomorrow.

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Maratha Reservations: Supreme Court continues hearing challenge to Maharashtra SEBC Act [Read Live Updates on today’s hearing]

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