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[Day 3] 5-judge Constitution bench of #SupremeCourt to continue hearing challenge to Maharashtra State Reservation for Socially and Educationally Backward Classes Act which provides educational and employment reservation to #Marathas.

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Senior Advocate Pradeep Sancheti to continue submissions today.

Read an account of yesterday's hearing:

barandbench.com/news/litigatio…

Bench has assembled.

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Senior Adv Mukul Rohatgi makes mention, asks that he be allowed to make submissions on Monday instead of tomorrow as a standing counsel who visited his office last night has tested COVID-19 positive and office has been closed for sanitisation.

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I've closed my office for sanitisation. All papers for compilation... We are ready with the matter, not trying to push it... All papers are in disarray: Rohatgi tells Court

He asks that he be permitted to commence submissions on Monday so he has two days to organise the papers

Court: Then we will hear Kapil Sibal and Mr Patwali...

Sibal informs he also handled the papers sent by the standing counsel who tested COVID positive

Sibal: He (the standing counsel) was to come to my office after... I have got one dose of vaccine, but I am a little perturbed.

Court says it will try to finish hearing petitioners' submissions today and then move on to the other side.

Senior Adv Sancheti resumes submissions.

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Sancheti had begun making submissions challenging the Gaikward committee report (which favoured Maratha quota) yesterday.

Court: We want to see what the report says, leave the High Court judgment. We will look into it. The report is the basic document

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Sancheti reads excerpts from the report. Refers to exception in Indra Sawhney case where reservation beyond 50% may be given to those cut off from mainstream.

Sancheti: Are they (Marathas) out of the mainstream of national life? These are considerations for your Lordships.

Sancheti continues reading report - reads out reference to census report of 1872 that Marathas and Kunbis were not treated to be Kshatriyas and were considered as Shudras, that this has to be treated as an "extraordinary situation", that majority is backward

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Sancheti: Basically (report is) stating that you have to treat them as Shudras... based on 1872 census report that 80 or 88% being shudra, today contrary to 7 earlier reports, we are saying that they (Marathas) are socially backward

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Sancheti: This, even if it is correct - I will show it is not correct -, may at best show you are backward. It does not show "extraordinary circumstances"

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Sancheti refers to the report's observations of Maratha farmers being backward.

Sancheti: If this is the logic, all farmers would have been on the backward list...70% of the land is owned Marathas

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Sancheti argues that even if report's findings are accepted, it would only mean Marathas may be included in OBC.

Sancheti: This is not an exceptional circumstance to say that we will cross 50% (limit on reservations as per Indra Sawhney case).

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Sancheti: Even if they (Marathas) are held to be backward, this is a case for including them in OBC within 50%

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Court asks Sancheti to point out what the Commission has to say on there being extraordinary circumstances to extend Maratha reservations beyond 50% rule in Indra Sawhney's case.

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Sancheti refers to part of report where Committee concludes that 80-85% of the population is backward and as such including them within 50% ceiling would be injustice to them and upset existing reservations. This is viewed as an extraordinary circumstance, Sancheti reads out.

Sancheti continues reading report, refers to the Committee's conclusion that the Maharashtra government can provide Maratha reservation under Articles 16 (4) and 15.

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Committee proceeded on the premise that all earlier 6 commission reports were unfounded, not backed by documents and are to be discarded - each of the conclusions are wrong, Sancheti submits.

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If these views are accepted, every new caste which is to be included has to have a separate reservation.. it will drive to a population-based course: Sancheti

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Court asks whether there was any dissent within the committee.

Court: Whether dissent is on record?

Sancheti: No, milord

Court: Is it correct that 5 of 11 dissented?

Sancheti: I will double-check... the extent I will check. There was dissent and the copies were not furnished

Adv Shriram P Pingle: There was no dissent, only additional opinions, which were furnished.

Court says it will hear him further later.

Sancheti resumes submissions

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Sancheti: The entire hypothesis that they have been left behind, there is historical justice is completely flawed.

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Today this commission proceeds on the basis that Marathas and Kunbis are the same, which is completely wrong, Sancheti.

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If this approach is accepted, the States, to suit their convenience, would go to convenient areas, pick convenient population, compare with state average and say look, they are backward, Sancheti argues.

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All you need is 1000 pages of report and 4000 pages of annexures to say 'please accept report, please dont go into the details'...I will show that the data collection and data analayis is patently flawed: Sancheti

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Sancheti: I will take Nagpur... you interview 153 of 50 lakhs, and then you want to say, "all other previous reports please discard, they are absurd, they have no data, we have data."

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Sancheti: See Konkan - which includes Mumbai, of course they haven't interviewed Mumbai at all - 73 (were interviewed)

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Sancheti: The law is settled. You must have a representative sample. This kind of numbers - you got to ay city and interview 73 people - what does it give us? 73 people - they are talking about the entire region!

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Sancheti: Kindly see the justification for this

Sancheti reads out that the Committee has said that it conducted the survey in urban conglomerates where the Maratha population is substantial.

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Sancheti: So you start with the presumption, without the data, that we will do survey only in certain pockets because we think they (Marathas) are there.

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Sancheti: This is to show that urban is virtually excluded.. 950 (persons) is no survey are all. Urban is completely excluded...This is starting with this presumption - before you start the survey... Cart before the horse

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Sancheti says he will show how "when you do this unscientific survey, how completely unbelievable, haphazard, unrealistic results may be thrown up."

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Sancheti refers to discrepancies in findings by Rane Committee of 2014 and the Gaikwad committee findings.

Whereas Rane Committee surveyed 4 lakh people, Gaikwad Committee surveyed 40,000, he submits.

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Sancheti refers to various discrepancies between the findings of the two committees.

Sancheti: This is to show how random results may be shown, which has no credence.

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Sancheti cites figures including - Rane committee found 39% Marathas took loans, Gaikward found it as 53%. Rane found 11.5% said loans were for agricultural purposes, Gaikwad found the figure was 85%.

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Migration statistics were found to be 8% in Rane committee report, whereas Gaikward committee found it to be 50%, Sancheti adds.

Sancheti: Can this data be said to be quantifiable data for doing analysis ... does that inspire that confidence?

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Sancheti refers to the finding that over 80% of Maratha women were engaged in physical labour for livelihood, as against State average of about 32%. He submits that this sample was based on survey only from particular backward pockets.

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Sancheti: Is this sample that you have drawn from particular (backward) pockets - is this representation?...
If this is the sampling, then everybody is backward (because of the area surveyed), who is left out?

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Court seeks to clarify: Your submission that there are 5 crore people in urban area and 6 crore in rural areas. State average is 32% which is of the entire state. Women are doing physical labour more in rural areas and it is above 80% in all communities...

Court: .... so if sampling is mainly concentrated in rural areas, it would show above 80 per cent only?

Sancheti: Yes

Sancheti: Can you say on this basis, I will award marks to Maratha community to make them backward?

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Sancheti says that he has detailed in the written submissions that if the marking system employed is accepted everyone would be backward and that If you correct the data, then no one would be backward.

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Sancheti makes submissions on Article 16 (4) of the Constitution. Says that there are two criteria (for extending reservations in public employment under this Article) -

- Quantifiable data on backwardness
- inadequacy of representation, which has to be factual, not estimated

Sancheti refers to Gokhale report, Rane report, to dispute the findings of the Gaikwad committee on the population of Marathas.

He submits he is trying to show that data on population is not worthy of credence, therefore there cannot be question of inadequacy of representation

Court expresses doubts over whether it can go into details regarding the population of Marathas and pronounce judgment, points out that it need not go into such details in this case

Court asks Sancheti to move on to his next argument.

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Sancheti argues on the dominance of Marathas, says it is a criterion relevant for evaluating backwardness, refers to Ram Singh's case.

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Sancheti: Almost 40% of MPs and MLAs (including at present) are from same community.

Sancheti adds that after submission of 2000 report, Bombay HC in an order had also noted that there is material to indicate Maratha are socially and politically dominant.

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Sancheti: Assuming I am wrong, and your lordships are persuaded to hold Marathas are backward - at all times, at highest, it will be a case of inclusion in OBC within 50%, not a case for exceeding 50%

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Sancheti argues that Gaikward committee report is only "convenient paperwork."

Areas are chosen, people are chosen and results compared as per convenience for the committee to say "here is the report, QED, court need not go into it all" - Sancheti says

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Senior Advocate Sancheti concludes. Senior Advocate Rajeev Dhavan

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Dhavan observes that he is being called to argue at the end. Court responds that most arguments have been made

Court: There is very little for you to do... You have to add something new to that

Dhavan: Of course

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Dhavan: Of course... I have been privileged to appear in all cases virtually on reservation since 1972

Court: Your name is in every judgment

Dhavan: I wish this burden would be lifted from my milord. I am growing old by the day.

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There is considerable political pressure that can be demonstrated in a large number of ways to include more communities in OBCs, Dhavan argues.

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Dhavan: The policies about non-Marathas in Maharashtra are well known. When I appeared in Indra Sawhney and argued it... the background to Indra Sawhney was that in 1990 VP Singh decided that OBCs were now to be included in the Union services

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Dhavan: I had to catch a flight to Columbia. There was a riot over there. The court issued a stay order. That was the background. This court cannot take that background...

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Dhavan says that Court has to consider the changing social dynamics.

Dhavan: What are these dynamics? Can we say that after 70 years there has been no improvement, that there has been a regression? Or can we say there has in fact been an improvement?

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Dhavan recalls that in Indra Sawhney case, the court had called for a periodical examination.

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Dhavan submits that there are 3 distinct stages in reservations:

1. Identification, Indra Sawhney ruled that this need not be done by legislation ("the question was raised by Venugiopal who has not changed his status and views, but that's beside the point")

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The other stages for reservations, as per Dhavan:
2. implementation
3. Vigorous judicial scrutiny, that is constitutionality.

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Dhavan: Part of the quarrel, in this case, is related to identification. States are saying that you have taken away the power of identification from us and given to national commission

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Dhavan: But the entire power of reservations has not been taken away. States have huge power as far as implementation stage is concerned.

What percentage of reservation, creamy layer - all this is left to State, he adds.

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Dhavan: We have to see if there has been a balance that has been maintained

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Dhavan: What is the level of judicial review in the various criteria that exists? I am suggesting to you Lordships, when it comes to 50%, it is very rigorous

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Dhavan adds that as per Indra Sawhney case, Preeti Shrivastava cases, Court has held that in certain areas there will be no reservation at all - super specialities, engineers, army etc.

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Correction: "the question was raised by Venugiopal who has **now changed his status and views, but that's beside the point" - Dhavan

Large part of reservations has been left to the State. They will decide on a host of questions as per Indra Sawhney: Dhavan

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After Court clarifies a point argued by Dhavan, Dhavan remarks: I'm scared of Justice Bhat's computer. In a jiffy he can find out where I'm going wrong.

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Dhavan moves on to questions posed by the Court, the first being whether the Indra Sawhney case needs to be referred to a larger bench in light of subsequent constitutional amendments.

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Dhavan refers to parliamentary debates, constitutional amendments on promotion, 81st-83rd amendment about carry over, an amendment on efficiency and on consequential seniority. He notes that these were not referred to Constitution Bench.

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Dhavan: In Nagaraj, all these were upheld, sometimes with directions - which you l may indicate, how this (identification of SEBC) should be done

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Dhavan: If we look at subsequent Constitutional amendments - what amendments are they talking about? 102nd and 103rd ...

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Dhavan: There has been no judgment that has questioned Indra Sawhney

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Dhavan on "changed social dynamics of society" that may warrant reconsideration of Indra Sawhney: Changed social dynamics - what does this mean?

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Dhavan: Are the social dynamics the jats breaking windows, are they huge demonstration... the socio-political reasons for raising reservations are entirely political

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Dhavan adds that he is not saying the Court cannot go into political decisions

Dhavan: ... (however) reservations under social and political pressure which reach a point of... may not be the social dynamics to take into account.

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Court breaks for lunch. Senior Advocate Rajeev Dhavan to continue arguments after the break.

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Bench re-assembles.

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Kapil Sibal seeks to make a mention, seeks that he may be excused from appearance tomorrow although he would appear if the court insists.

Court permits Sibal to argue on Friday. Asks if Attorney General can argue tomorrow

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Attorney General KK Venugopal says he has to get instructions on what the Government's views are on the issue.

If he does not get these views by tomorrow, AG adds: I would put forward my views on the clear understanding that these are my views and not the government's

Court to Attorney General KK Venugopal: You put your views (tomorrow). If required, we will ask the Solicitor General to put the views of the government.

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Senior Advocate Rajeev Dhavan continues his submissions, refers to Indra Sawhney case where it says that power of reservations under Article 16 (4) must be exercised in fair manner, must not exceed 50% barring certain extraordinary situations

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Dhavan refers to an extract in Indra Sawhney's case where court said it is not advisable to grant reservations in some areas.

Dhavan: This reinforces the differential principle

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Dhavan: Firstly there is no obligation at all. A political obligation to an electorate is not a constitutional obligation

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Dhavan: As far as 50% is concerned, the standard is extremely high. Unfortunately, the third exception is, in certain areas, there can be no reservation at all.

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Dhavan: When you look at reservations given in University departments, for professors, technicians..this paragraph needs to be clarified. That this is not just an idle example, it goes to root...did Maharashtra take these examples into account?

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Court asks query on Dhavan's views on the 102nd Constitutional amendment and its implications.

Dhavan responds that he is yet to find a clear answer to the dilemma that follows on the identification of SEBCs.

Dhavan: ... There can be a consolidated list that can be divided into various states, UTs etc...this amendment is valid, both 102n and 103rd because they enhance the machinery and substance of equality.

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Dhavan: Who has the power to explore Backward Classes, there is a dilemma. I will explore that... There has to be a creative interpretation.

Dhavan notes that one possible interpretation has been given by Datar and another by Sankaranarayanan

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Dhavan on EWS quota: It is clear from Indra Sawhney and the 50% rule which has a rationale that everyone must have 1 in 2 chance, with the 103rd amendment, EWS will also have to be accommodated within the 50%

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Dhavan: To that extent, it is relevant to my argument about the 50%.

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Dhavan: I met Mr Mandal and asked what is the reason for 27% (reservation for OBCs). He said mathematics.

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Dhavan: We are dealing with 50%, which has to include EWS ...These are equality enhancing provisions. It is equality enhancing, It has to come within the 50%

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Dhavan refers to Article 16 (4). Goes on to submit that EWS can be viewed as another category in Article 16 (4)

Dhavan: This is not an exceptional circumstance. This is including another category in Article 16 (4)

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Dhavan suggests that Article 16 (4) can be read to include
any backward class "including weaker sections", but weaker sections would have a maximum (of 10% reservation)

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Dhavan says the interpretation would be up to the Court.

He adds: The logic has always been, after 16 (1), 16 (4) and all that follows... all are part of the regime of equality.

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Dhavan refers to Article 338B of the Constitution dealing with the constitution and functions of the National Commission for Backward Classes.

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Dhavan: The sad tragedy is... there are no ameliorative measures (for backward classes). You will give quotas and get your votes accordingly... but some schemes should come, for eg. Mahatma Gandhi's scheme for rural employment

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Dhavan says apart from some schemes: .... ameliorative schemes do not exist in any abundant measure and are not implemented.

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Dhavan refers to functions of the NCBC under Article: Where is the question of quota here?

Article 15 (4) contemplates ameliorative schemes, he adds.

Dhavan: Articles 338A and 338B there are connected with what I have just pointed out about the width of Article 15 (4)

Dhavan: The biggest part of reservations is of ameliorative action. This what Amartya Sen says, make everybody able to compete in the same way... The most important aspect of reservations or affirmative action is amelioration. So why do 338A and 338B offend us in any way?

Dhavan: How has the (102nd) amendment here affected equality or federalism? It enhances equality. As far as federalism is concerned, the national commission will obviously reach out to everybody in the country.

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Court says the issue is with the interpretation of Article 342A, not Article 338B.

Dhavan responds, the question is whether the provisions should be narrowly applied (in which case it will only apply to Article 15(4)) or whether it will apply to Article 16 (4) as well.

Dhavan: In my respectful reasoning, given that 338B talks of National Commission of backward classes and given common... between "backward classes" and "socially and educationally backward classes"...

Dhavan says it is a difficult call to make. Notes that SEBC may be viewed as coming within the broader category of backward classes.

Dhavan argues that under Article 342A, the "central list" can be a consolidated list that may be divided into state, region wise.

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Dhavan: Someone may be socially and educationally backward (SEBC) in one state, may not be SEBC in another state. Nothing prohibits Parliament from making a consolidated list and applying in state wise

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Dhavan: ... a greater precaution was taken in Article 342A. After the president has done all this, any further additions have to be done by parliament

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Dhavan: So today, the significant change is that if there are any changes to be made to (SEBC) list, it will be by parliament.

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Dhavan refers to excerpt in Indra Sawhney judgement.

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Dhavan refers to observations made in the Indra Sawhney case where it was noted that in addition to discrimination and disadvantage, "sharing power" is also a factor to determine backwardness to be eligible for reservations.

Dhavan: Are the Marathas deprived of sharing power?

Dhavan: The most important object of the Constitution is the sharing of state power and the sharing of state opportunities.

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Dhavan: Ramifications are not individual ramifications of a person seeking power. It is the group ramifications also that are significant

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Dhavan adds that although Babasaheb Ambedkar said he has made the individual the basis of the Constitution, nevertheless, Ambedkar fought for groups and it is that group power that is relevant.

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Dhavan reads out his written submissions. Says there is no need to re-examine the Indra Sawhney case, the regime from 1950 to 2020 can resolve the Maharashtra case, nothing more is required.

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Dhavan argues that the State's implementation power in reservations has not been taken away, that there is no conflict in judgments, that all judgments have followed the Indra Sawhney case.

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Dhavan countering submissions that circumstances have changed, says that the only changed circumstance is that more people want it (reservations).

Dhavan: (If) more people want it, we have to be more rigorous.

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Dhavan: What exactly is the change that has taken place that requires a re-examination of the Indra Sawhney case?... What is this new principle? "Let us go beyond 50%." Why? "Because there is a clamour for it."

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Dhavan: ... the Constitution is always in a stage of becoming - first is through constitutional amendments that are necessary and the second is through your lordships.

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Dhavan: I know of no case, despite the dispensation of Justice Jeevan Reddy that you will periodically examine the list, where anyone has been deleted from the list.

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Dhavan refers to the identification of SEBC under Article 342A by President: We can't assume arbitrariness.. we live in an age of cooperative federalism...we say that the president would do this without consultation with governors of States?

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Dhavan: The secret of India's success with reservations apart from political factors that have armed it...the idea behind this is you maintain a balance. if you go beyond, then something is wrong

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Dhavan makes his submissions on his conclusions, says issue or reservations cannot be viewed in isolation, enabling provisions can be examined by Court.

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Dhavan recalls that the Court had asked yesterday if SEBC list has been made yet under Article 342A

Dhavan: Well they (list) have to be made and they have to be made as a matter of urgency.

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Dhavan adds that Court may direct that the SEBC list be made within 3 months to operationalise it

Dhavan: Otherwise there will be a void that will never be filled. There is too much politics in all of this.

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Dhavan concludes his submissions.

Senior Advocate BH Marlappalle makes submissions.

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Marlappalle makes submissions on why external aids are not required to interpret the Articles inserted by the 102nd amendment.

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Marlapalle Refers to the Indra Sawhney case where the court said external aids are permissible since "backward classes" has not been defined.

Marlapalle: In our case, the Constitution has now defined it

Court: The debatable issue was about "Central" list, not SEBC

Marlapalle: ....Historically power was always with the President, not with the States (except when it was partially transferred to State). The power of identification, source of identification, has always been with the president, even for SEBCs

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Marlapalle: State commission has held Marathas are OBC and given three reasons 1. Kunbi and Maratha are same...

Court: That has already been covered

Marlapalle: I am coming to the point...

Marlapalle: The question that comes in, if Maratha and Kunbi are the same... Kunbi is already in the list of OBCs. There was no need for separate legislation if Maratha and Kunbi are the same.

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Dhavan mentions that he has submitted 2 references to show how words, even in same section, have been interpreted differently. One eg. is the interpretation given to the word "vest" in the Babri Masjid case.

Dhavan: This would complete the argument of that diemma created

Court adjourns hearing for the day.

Senior Advocate Marlapalle says he would need 10 minutes, he will continue arguments tomorrow.

Other petitioners also expected to argue thereafter. Hearing over.

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Maratha Reservation: Political obligation to an electorate is not a constitutional obligation - Rajeev Dhavan argues in Supreme Court [Read LIVE account of the hearing today]

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