Thread by @barandbench

[Day 4] 5-judge Constitution bench of Supreme Court will continue hearing the challenge to Maharashtra State Reservation for Socially and Educationally Backward Classes Act which provides educational and employment reservation to #Marathas.

#MarathaReservation
#SupremeCourt

Read an account of yesterday's hearing: -

Maratha Reservation: Political obligation to an electorate is not a constitutional obligation - Rajeev Dhavan argues in Supreme Court [Live Updates]

barandbench.com/news/litigatio…

Bench assembles. Hearing starts. Senior Advocate BH Marlapalle resumes submissions.

#MarathaReservation
#SupremeCourt

Marlapalle reads from the 2019 Bombay High Court Judgment that had upheld #MarathaReservations.

#MarathaReservation
#SupremeCourt

Marlappalle reads from Bombay HC Judgment that "it was not the intention of the Parliament to stall the entire process in the respective States till the exercise contemplated by the 102nd Amendment gets converted into a reality."

He argues that this reasoning is unacceptable.

Marlapalle reads Bombay High Court's observations regarding there being "extraordinary circumstances" for exceeding 50% since State has accepted #Marathas as backward, as existing 19% quota for OBC should not be disturbed etc.

#MarathaReservations
#SupremeCourt

Marlapalle: On both counts, it is not acceptable

He asks Court to take note of observations in certain cases, gives citations

Marlapalle argues it is settled that it is only the President's right.

Marlapalle concludes submissions.

#MarathaReservations
#SupremeCourt

Advocate Gunratan Sadavarte begins arguments.

#MarathaReservations
#SupremeCourt

Sadavarte: When the 102nd amendment is accepted as it is, the reservations have to be given finality by the president and parliament. That has not happened.

#MarathaReservations
#SupremeCourt

Sadavarte: The argument on backwardness and the Gaikwad committee report are secondary... Bombay High Court judgment and Act of Maharashtra are bad in law. There are procedural lapses.

#MarathaReservations
#SupremeCourt

Sadavarte argues that EWS reservation is available to those other than persons to whom reservation under Article 16 (4)

Sadavarte: I do not agree with Mr Divan that they may be shifted to 27%. if this is accepted...backwardness is accepted.

#MarathaReservations
#SupremeCourt

Sadavarte cites Keshao Vishwanath Sonone's case, says that this case makes it clear that you can't change the presidential list and order

Sadavarte: If the reservation is changed, it will amount to change in the reservation list

#MarathaReservations
#SupremeCourt

This is an action plan of Maratha leaders, Sadavarte argues.

Sadavarte: Marathas are not the only citizens of India, we are also citizens of India.

#MarathaReservations
#SupremeCourt

Sadavarte: Milords may kindly, on the basis of law... 50% and backwardness is secondary. The Chinniah case and 102nd amendment...never came to finality. The reservations don't stand.

Sadavarte concludes.

#MarathaReservations
#SupremeCourt

Advocate SB Talekar begins submissions.

Court: All submissions have almost been covered, if you have anything to add...

Talekar: Yes

#MarathaReservations
#SupremeCourt

Talekar argues that there was no legislative competence.

Court queries when State has the power to legislate on its services, would it not be part of power under Article 16 (14)? When they can set up their own institutions, don't they have the right to say who can be admitted?

Talekar argues on how the power to make reservations vests with State, but the power to identify backward classes rests with President and Parliament.

#MarathaReservations
#SupremeCourt

Court says these arguments have been addressed.

Court: Any other argument ... We want desperately to hear you saying something different, something new?

#MarathaReservations
#SupremeCourt

Talekar says that there is a plea seeking reservations for rmuslims

Court responds that it cannot issue a mandamus to provide reservations, these are enabling provisions for the state, Court cannot issue directions.

#MarathaReservations
#SupremeCourt

Court: What are you endeavouring at Mr Talekar? Come to prayer G. You want identification for the Muslims (as a backward class)... All your colleagues have agreed, that identification is vested with the President...

#MarathaReservations
#SupremeCourt

Talekar submits that unless directions are issued, the State won't consider.

Court: Now your grievance can be addressed by the National Commission... you can refer it to the National Commission, that you are backward class.

#MarathaReservations
#SupremeCourt

Court: Your arguments have been taken note of by the High Court Judgment

Talekar: They have not been dealt with

#SupremeCourt

Supreme Court: We will consider what is to be done in your case.

Advocate RK Deshpande begins arguments.

#MarathaReservations
#SupremeCourt

Deshpande reads from written submissions

Despande argues after 102nd Amendment, the State's powers under Articles 16 (4), 15 for making reservations are denuded in so far as it relates to "Socially and Educationally Backward Classes", but for other "backward classes" it remains

Deshpande: Article 16 (4) uses "backward classes of citizens". From these citizens, only a small portion of SEBC is taken out. Only the central list will operate for SEBC

For others, it will be the state list, which will be on the basis of the state commission's recommendations

Court: You are saying there cannot be a state list for SEBC?

Desphande agrees: Because 102nd has denuded power of State under Articles 16, 15 to the extent that it will concern SEBC

#MarathaReservations
#SupremeCourt

Court points out other counsel have argued it (SEBC reservation) is restricted only for identification and thereafter there can be a state list

Desphande: I fully agree

#MarathaReservations
#SupremeCourt

Court muses on an alternative view: That when parliament has the power to make law for inclusion and exclusion, why can't we say that there is a state list for which parliament doesn't have power?

Deshpande: State list is there, excluding SEBC for which special provision is there...

Advocate Amit Anand Tiwari is making submissions.

Court notes that if some of his submissions are accepted, the court would have to scrap the first three questions of reference to the larger bench.

Court: ...don't make such unreasonable requests

#MarathaReservations

Tiwari responds that he is only making arguments so the court may take a view that this can be done

Court: As you have said, you are the 11th batsmen, (if the submissions are accepted), it will be as if all these batsmen before you have not played at all.

#MarathaReservations

Tiwari requests the Court to permit him to make further submissions, he says that he apologises if the submissions have offended the Bench.

Court: As a Constitution bench we cannot scrap the questions

Tiwari: Not saying scrap, submitting on the remit of questions...

Tiwari submits that even prior to the 102nd amendment, reservations were implemented by states through state commissions set up "with the assent of the president because it was a field occupied by Article 340."

#MarathaReservations
#SupremeCourt

Tiwari refers to an earlier commission

Court: We have to consider the 2018 Act...

After the 102nd amendment, the 2018 Act falls afoul of reservations through identification by the president and parliament, Tiwari submits

Court: That argument has been argued threadbare

Tiwari says that he is trying to show that the federal structure is not altered after the 102nd amendment.

Tiwari: I am saying that identification for reservations has never been the exclusive preserve of the state

#MarathaReservations
#SupremeCourt

Tiwari: That is why earlier commissions in States took assent of the president under article 254. The field was already occupied by a central law...

Court: Alright.

Tiwari: On procedural and substantive aspects, 102nd amendement is valid

#MarathaReservations
#SupremeCourt

Senior Advocate Preetesh Kapur begins submissions.

#MarathaReservations
#SupremeCourt

Kapur is arguing on the interpretation of 102nd amendment.

Court notes that some of his submissions run contrary to earlier submissions made on the aspect of whether State lists will continue.

#MarathaReservations
#SupremeCourt

Note: Preetesh Kapur is appearing for the State of Chhattisgarh.

Kapur is making submissions on the use word "Central" in Article 342A of the Constitution

#MarathaReservations
#SupremeCourt

Kapur argues that"Central list" in Art 342A is nothing more than the presidential list, and every constitution bench judgment concerning Articles 341 and 342 used the term "presidential list"

Court: Those were regarding 341 & 342. 342A "presidential list" word has not been used.

CORRECTION: Kapur appears for petitioner challenging 2011 Amendment Act concerning reservations in Chhattisgarh, NOT for the State of Chhattisgarh

Court observes that the writ petition filed in relation to Chhattisgarh concerns factual aspects and concerns that should ideally be considered by the High Court first rather than it be heard by Supreme Court in this case.

#SupremeCourt
#MarathaReservations

Court: With regard to Chhattisgarh, there are certain schedule areas also?

Kapur: Yes

Court: Have you said anything about that in your petition?

Kapur: Not with relation to hill areas... It is only with relating to challenge to the Act.

Court: These are matters you should address before Hig Court first.. there are hill areas.

Kapur: Please hear me on the question of law

Court: Chhattisgarh is not an ordinary State. There are special reasons for reservation.

Court: The matter clearly warrants separate consideration. This can't be a clever attempt to put all issues in one basket.

Kapur responds that there are at least two questions of law that were bound to be the same, including consequences of 102nd amendment.

Court: We will not entertain the Article 32 petition, we are inclined to send you to High Court. We are of the opinion that it requires consideration of the High Court first.

Court dictates order, says it is not entertaining Article 32 plea. Petitioner granted liberty to move HC

After submissions by Adv Jaikriti S Jadeja, Court also de-tags a plea challenging a 2016 Haryana Act and directs it be posted before the appropriate bench.

Court asks if there are any other petitioners arguing.

Court is informed that there is a petition challenging the validity of the 102nd Constitutional Amendment itself. Adv Amol Karanade appears for the petitioner.

Court issues notice, says it will hear arguments after others

In response to Court's earlier queries, Senior Advocate Gopal Sankaranarayanan informs Court that there are horizontal reservations in Maharashtra for the physically handicapped (5%), hilly areas (3%), women and Maharashtra Karnataka Border quota.

#MarathaReservations

Attorney General KK Venugopal begins submissions

#MarathaReservations
#SupremeCourt

Court informs AG Venugopal of the petition challenging validity of the 102nd Constitutional Amendment.

AG Venugopal says that he would argue on this petition separately.

#MarathaReservations
#SupremeCourt

AG Venugopal: When a Special direction is issued by a 9 Judge bench (and the Government shows every indication to implement it)- is it conceivable that an amendment to the constitution will be made, by which...states are denuded of the right to identify backward classes?

AG: According to me, with the imprimatur of the 9 bench judgment, it is inconceivable that any such amendment would be brought into force, the effect of which would be that no State would be having the power to identify SEBC.

#MarathaReservations
#SupremeCourt

AG: If this be so, even if the govt of India or parliament decided that they would denude the states of the power... (it would require) an express provision to that effect.

#MarathaReservations
#SupremeCourt

AG reads more observations from the Indra Sawhney case.

Court: Then there was no need for amending Articles 366, 342, 338...

AG: I will show the difference between the 1993 act and why it became necessary to have the 102nd amendment.

#MarathaReservations
#SupremeCourt

AG: If you deprive the State legislature of a State or a State executive of the right given under Articles 15 (4) and 16 (4) for identification the socially and backward classes, one would have to add a proviso or amend 15 (4) and 16 (4).

#MarathaReservations
#SupremeCourt

AG: Articles 15(4) and 16(4) from the very inception is recognised as a source of power, for the state as well as centre, to identify socially and educationally backward classes (SEBC), because without identification one cannot make provisions for the advancement of the SEBC

AG: No such amendment (to Articles 15(4) and 16(4)) has been made by which the operation of 15 (4) or 16 (4) has been affected in any manner directly.

#MarathaReservations
#SupremeCourt

AG: According to me, you cannot indirectly modify the impact of a constitutional provision.. especially when it means advancing the purpose of the preamble to the constitution and directive principles of constitution

#MarathaReservations
#SupremeCourt

AG: The preamble says 'justice, social, economic and political - which would require affirmative action and both Articles 15 (4) and 16 (4) are prescriptions for affirmative action

#MarathaReservations
#SupremeCourt

AG: ... "equality of status and opportunity" which would necessarily mean that where there are unequal, you will take legislative and executive action to bring unequal on par with the rest of the group.

#MarathaReservations
#SupremeCourt

AG: India has a huge population that lives below the poverty line. Surely their access to education and jobs depends on their being qualified and trained ...

#MarathaReservations
#SupremeCourt

AG: ... There was a theory accepted by Indra Sawhney case that groups that were identified by the caste to which they belong would indicate social and educational backwardness.

#MarathaReservations
#SupremeCourt

AG: As a result... states... basically identify groups which were backward because of the caste to which they belonged, which deprived them of an equal opportunity to compete with non-backward or forward classes

#MarathaReservations
#SupremeCourt

AG: This is the genesis of reservations and benefits given to the socially and educationally backward.

#MarathaReservations
#SupremeCourt

AG reads from written submissions, reads out provisions of the National Commission for Backward Classes Act, 1993.

#MarathaReservations
#SupremeCourt

AG: So far as Punjab is concerned, there are 71 castes in-state list, while there are only 68 on the central list

Court: When was the Punjab list prepared Attorney?

AG: 2016

#MarathaReservations
#SupremeCourt

Court: Because initially in 1993, when the list was prepared, the central list - it is said that list by Mandal commission and the state list were taken into account and common castes were included

AG: Yes

#MarathaReservations
#SupremeCourt

AG: Now they are amending it from time to time because one of the unfortunate vices of power given to the state under Articles 15 (4) and 16 (4) is that before each election, I have found personally, in Tamil Nadu one group ... is being introduced and .. votes are obtained

AG: At the same time it is not consiered in the nature of a bribe which is offered.. this is one of the unfortunate...

AG adds that his submission on the Punjab list was only to show that the State and Central lists can be different,

#SupremeCourt
#MarathaReservation

AG Venugopal moves on to submissions on Article 342A, inserted by the 102nd amendment to the Constitution. He reads objects and reasons for the amendment.

#SupremeCourt
#MarathaReservation

AG Venugopal argues that it is the central list alone that is to be covered by Article 342A so far as the intention of parliament is concerned.

#SupremeCourt
#MarathaReservation

On the point of there being State and Central lists, AG has argued that this is also what is to be understood on a reading of Article 15 (4), 16 (4) read with Article 12 of the Constitution.

#SupremeCourt
#MarathaReservation

Court breaks for lunch. Attorney General KK Venugopal to continue submissions after the break.

#SupremeCourt
#MarathaReservation

Bench re-assembles.

Attorney General KK Venugopal continues submissions. Refers to a select committee report.

#SupremeCourt
#MarathaReservation

Court asks AG to read out a certain excerpt from the report, AG reads that the amendment is not meant to affect State powers of inclusion and exclusion in lists of backward classes.

#SupremeCourt
#MarathaReservation

AG: So far as Articles 15 (4) and 16 (4) is concerned... they would remain untouched and undisturbed by Article 342A. The two stand compartmentalised.

#SupremeCourt
#MarathaReservation

AG: And pursuant to Indra Sawhney... so far as the States are concerned, they are required to have their own State backward classes commissions.

#SupremeCourt
#MarathaReservation

AG refers to Article 366 (26C).

AG says that the state's powers are not touched and that only "socially and educationally backward classes" is defined for purpose of the Constitution.

#SupremeCourt
#MarathaReservation

AG submits that the rights of the states which remain untouched "expressly" (by amendment) will continue. He points to opening remarks of Section 366 i.e. "unless the context otherwise requires."

#SupremeCourt
#MarathaReservation

Court poses a query: Section 342A (1), on a plain reading, the president identifies and specifies SEBC with respect to any state for the purpose of constitution.. the "central" list does come here...

#SupremeCourt
#MarathaReservation

AG: There are Public Service Undertakings in the Government of India, even offices of Central government in states where there is the employment of the public servants of the union. In these cases, the Union won't take lists of state governments.

AG points out that the Central government also has educational institutions such as IITs and IIMs in various States.

AG: Suppose you are reserving in those institutions, you have to prepare a central list.

#MarathaReservations
#SupremeCourt

AG: So far as the state is concerned, there will be union establishments, both public corporate branches of Govt of India... so far as those employees are concerned for whom centre will give benefit - the centre will have to have its own list.

AG: Central list will apply to Central government public corporations, Central Government offices such as railways in various states. The Centre does not accept blindly the identification of the State governments.

Court: So in the case of Marathas, which the National Commission has rejected (to be included as Backward Classes), according to Centre for purpose of this constitution, Marathas are not backward visa vis the union? But notwithstanding that states can have its own critieria?

Court adds to the query, "for the purpose of debate": Isn't 342A a way to bring about uniform standard for backward classes?

Otherwise, like you said, prior to elections, a number of backward classes are introduced... to overcome this behaviour, the union has evolved 342A...

Court:... which means that the union identifies - the power of inclusion is with the union, but power of graning reservations (granting the benefit, decided how much) is left to the State under 15 (4) as with the case of SC/ST. Is that what is attempted?

#MarathaReservation

AG argues State govt has an independent power, which has never been touched under Article 342A.

#MarathaReservation
#SupremeCourt

AG Venugopal refers to the Supreme Court's ruling in Ashoka Kumar Thakur vs Union Of India & Ors, to make submissions on interpreting provisions harmoniously.

The Ashoka Kumar Thakur ruling can be read here: indiankanoon.org/doc/63489929/

#MarathaReservation
#SupremeCourt

AG: Article 342A exclusively deals with the central government's competence to identify socially and educationally backward classes for its own purposes - where, in States, central government jobs or educational seats are to be filled up - they have to have their own list.

AG: In every state, there is a state list for state institutions and educational institutions and state employment.

#MarathaReservation
#SupremeCourt

AG: To construe this (102nd amendment) as excluding States from exercising power because of (Art 366) 26C is not justified because there is no attempt to modify Articles 15 (4) and 16 (4) which has declared that power to identify backward classes lies both with State and centre

AG: Unless you amend Articles 15 (4) and 16 (4) and denude States of the right to identify backward classes, it would not be right to construe Article 342A as denuding the state's rights.

#MarathaReservation
#SupremeCourt

AG reads case of State of Punjab vs Davinder Singh; notes that qn of interpretation of Articles 14, 15, 16, 338, 341, 342 342A has already been referred to 7 judge bench.

As such, AG requests that Bench restrict consideration to the validity of identification of Marathas as SEBC

Court responds that since questions are already framed, and since the matter will keep on cropping every litigation "we have to see what is the correct interpretation of Article 342A."

Court adds that it has also issued notice today in a writ petition challenging 102nd amendment

AG notes that writ petition challenging the 102nd Constitutional amendment appears to be on the basis that State's powers have been taken away.

Court responds that it will hear AG on the writ petition when it is taken up, possibly next week.

#MarathaReservation
#SupremeCourt

AG concludes submissions.

Solicitor General Tushar Mehta asks the court if he can make submissions after Senior Counsel Mukul Rohatgi makes submissions on Monday. Court agrees.

Senior Advocate Kapil Sibal informs that he can make submissions for State of Maharashtra tomorrow

Hearing over, to continue tomorrow.

#MarathaReservation
#SupremeCourt

Maratha Reservations case: Inconceivable any amendment would be brought by which no State will have the power to identify SEBC: AG KK Venugopal

Read full LIVE account of the hearing today:

barandbench.com/news/litigatio…