Thread by @barandbench

[Day 6]

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

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Bench assembles. Senior Advocate Paramjit Patwalia to continue submissions today.

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Read an account of the last hearing on Friday:

barandbench.com/news/litigatio…

Senior Advocate CU Singh seeks to make submissions for an intervenor after Senior Advocate Kapil Sibal.

Court says it will hear intervenors after it hears all States.

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Senior Advocate Patwalia is now making submissions on how public hearings were conducted by the Gaikwad Committee

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As far as Mumbai is concerned, public hearings were first held at CBT, Belapur and Thane on July 13, Patwalia says.

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After all hearings were complete, a large number of representations were sent saying that they haven't made their submissions. To accommodate this residue, one more hearing took place at an office in Mumbai for which intimation, Patwali says

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No criticism or complaint that anyone who wanted to say anything was prevented. It was an open, transparent process, Patwalia says

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Referring to protests, Patwalia says that silent marches were held with five ladies heading the march so that a representation can be handed over to the collector before the protest crowd dispersed. This happened in Mumbai as well, he says.

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Patwalia submits that it is not as if 60,000 people made individual representations. One representation was signed by 60,000, he says.

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Patwalia submits that the #MarathaReservations was first challenged by one, Sanjeev Shukla who runs the NGO Youth For Equality. He points out the same NGO has challenged EWS reservation, other forms of reservations in other States.

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If publicity had been given, why was there no opposition? Court asks. Court adds that people may have not known if Maratha reservations is an addition to or part of 27% reservations.

Court points out that 90% of the respondents were Marathas, and only 10% to other categories.

Patwalia: If there is no one coming to oppose, the commission cannot...

Court: We are not asking why people did not come. Only saying that we can reasonably assume that persons from OBC who thought this Maratha quota would be to their detriment, they would have opposed...

Patwalia responds that there was opposition, refers to resolutions passed, says that there were protests in Maharashtra where it was a burning issue.

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Patwalia asserts that there was sufficient publicity given and that he would show this. He also seeks to produce photos of some protests, Court says it won't go into any material that was already not there before the Bombay High Court.

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Court: Terms of Reference (of Gaikwad Committee) never said it (Maratha quota) should be a separate quota, which the committee ultimately recommented. How were those already in OBC to know?... for those in the general quota, there was a presumption that 50% limit would be there.

Patwalia asserts that the other backward classes were vigilant and there were representations made.

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Patwalia makes submissions on the constitution of the Gaikwad commission, says he wants to challenge the notion that it was "packed with Marathas."

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Patwalia reads out Justice Gaikwad's background and credentials. Member, Chandrashekhar Desphande, he points out, is a brahmin.

Patwalia adds: I am sorry to say it like this, I don't feel very comfortable at all, but he is a brahmin. His educational qualifications are ...

Patwalia reads the credentials of another member.

Patwalia: These are all social scientists

Patwalia further points out that the Gokhale Institute of political science, which helped in conducting the study, is a central institute and a leading institute.

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Patwalia argues that the Gaikwad committee has adequately considered all earlier commission reports. He adds that this was also discussed by the Bombay High Court, which included a chart highlighting the shortcomings of earlier reports.

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Patwalia argues that it clearly shows why earlier reports would not hinder the finding that Marathas can be considered as a socially and educationally backward class

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Court questions why the State did not take any action after the Kalelkar Committee recommended that Marathas be considered a socially and educationally backward class.

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Patwalia says that State set up a state commission, which did not find Maratha as SEBC, "therefore all these protests took place"

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Kalelkar Commission was never accepted by the Centre, Patwalia says, responding to Court's queries.

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Maharashtra set up the Deshmukh committee, which said that Kunbis appeared in OBC category ... that Maratha and Kunbis are two sides of the same coin...That is how Marathas started having this feeling of resentment or being left out.

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Advocate Shriram R Pingle requests if he may be allowed to assist the Court on certain aspects.

Court says it will hear him later: Please don't...

Patwalia: I'm sure court will give time, Mr Pingle. Please allow me to continue.

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Patwalia makes submissions on what were the "exceptional circumstances" for extending #MarathaReservations beyond the 50% limit set for reservations in Indra Sawhney case.

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Patwalia argues that the first circumstance was that the proportion of the population entitled to it (#MarathaReservations) is too huge, and the quota available was too small.

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Patwalia reads submissions, including the Gaikwad Committee report, the State's acceptance of the report.

Reads that if those already granted well-established reservations were shared with Marathas, it would be catastrophic.

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Patwalia further submits:

- Reconsidering a 50% limit to grant Maratha quota was the only way to harmoniously resolve the issue.
- The Gaikwad committee report was signed by all members, it was unanimous and there was no dissent.

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Patwalia adds that after State accepted the report, it was unanimously passed in both Legislative Assembly (288 members, regardless of party, irrespective of whether the member is holding a reserved category seat or not) and the Legislative council (78 members, no reservations)

Marathas were deleted from OBC and were added in forward open category: Patwalia reads from socio economic Caste census conducted by Rural Development Dept.

The reservation would have been completely illusory if the 50 percent cap was followed in this case. In order to avoid that, it found that it is an exceptional circumstance to increase the reservation beyond 50 percent: Patwalia

Merely because a community is in a far flung area will not entitle them to reservation as per Indra Sawhney. 2 other conditions also need to be satisfied - that such remoteness led to them being out of mainstream national life and they also have conditions peculiar to them: Court

Indra Sawhney does not say 50 percent cannot be breached at all: Patwalia

Majority view is 50 percent can be crossed only in exceptional circumstances. Three judges said it cannot be crossed at all: Justice Hemant Gupta

From what we know, there is 19 percent reservation for 32 percent OBCs. We would like to see your list of OBCs before and after recommendations of the committee: Court

On people not being in mainstream, Justice L Nageswara Rao cites a community in Tamil Nadu was not allowed to come out during daytime. He says those are example of keeping community away from mainstream hinting Marathas might not be a fit case for that

These (what is laid down in Indra Sawhney as exceptions to cross 50 percent) are indicators: Justice Ashok Bhushan.

Patwalia says Court should keep in mind that in cases like these, it is the subjective satisfaction of State govt which the Court is putting to scrutiny.

A community should be given an opportunity to uplift. Otherwise it will always remain backward.
The opportunity can be reconsidered after specific time based on new studies: Patwalia

Our 2014 Act does two things. It creates reservation to SEBC and then it identifies Marathas as an SEBC.

Even if the identification is struck down, my power to create reservation cannot be struck down. Identification is an issue but creation is not: Patwalia

Court says creation follows identification.

My definition of SEBC is an inclusive definition: Patwalia

Patwalia concludes his arguments.

Senior counsel Shekhar Naphade begins submissions on behalf of Maharashtra.

My basic proposition is Balaji is the root from where we get 50 percent ceiling and my argument is that Balaji was not correctly decided.

Bench says Mukul Rohatgi had argued on this point. Asks counsel not to repeat submissions.

Naphade says he will be taking a different angle.

My submission is that it is not clear from the judgment how court arrived at the figure of 50 percent.

Naphade says by rejecting Gowda committee report, the Court took over the functions of the govt.

It is not for this court to sit in review over the same and no judicial review can be exercised over subjective satisfaction of govt on such issue.

The finding that reservation cannot exceed 50 percent is obiter and not ratio. Reasonableness regarding limit on reservations cannot be decided based on abstracts as was done in Balaji case: Naphade

Naphade places reliance on the judgment of Justice Sawant in Indra Sawhney to contend that there can be no 50 percent ceiling.

Naphade says there is considerable diversity in the views of members of the Bench in Indra Sawhney and therefore it should be referred to larger Bench.

Naphade concludes.

Senior Counsel Kapil Sibal to argue after lunch at 2 pm.

Bench assembles.

Senior Advocate Kap Sibal commences on behalf of State of Jharkhand.

Behind Article 15 are millions of people with aspirations: Sibal

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This a big moment because it is the first time this issue is being considered after Indra Sawhney.

There is nothing in Indra Sawhney which mandates 50 percent ceiling: Sibal.

There was no such question framed and decided in Indra Sawhney on 50 percent cap: Sibal

Article 15 deals with empowerment while Article 16 deals with employment.

Article 15 deals with getting eligibility for a job.

Article 16 deals with getting a job once the person becomes eligible.

The dynamics of both Articles are different: Kapil Sibal

Indra Sawhney did not have anything to do with Mandal commission. It was called upon to decide validity of government order and there was no question of 50 percent before it: Sibal

Some states have very less backward population while some States have very high backward population. India is not a uniform territory. Even within a State there are full of diversities: Sibal

Will Bihar apply Indra Sawhney in the same way as Assam: Sibal says citing different OBC population in the two States.

Concept of equality will differ from one State to another: Sibal

The issues of equity in the context of advancement of interest of SEBCs will differ from State to State: Sibal

Access not only means caste. It could mean there is not enouh number of seats or institutions. All of them want to but there might not be enough seats: Justice Ravindra Bhat.

According to me difference between developed country and developing country is gross enrolment ratio (GER). It is not GDP or industrial production.

GER in USA is 88%. India it is 28

If enough students don't go to college, you are not going to be developed country: Sibal

Sibal reading data on number of schools in the country.

Why do we have Kendriya Vidyalaya schools. It is 100 % for govt servants, not 50% Nothing wrong with that. Similarly Kasturb Gandhi Balika Vidyalaya for girls only, for advancement of women. Nothing wrong in that: Sibal.

Suppose govt gives 70 percent reservation, you (court) can strike it down saying it was not done properly. But you cannot tell govt that it can only be 50 percent: Sibal

Why stop at reservation? Why can't other things also be done. Why not promote education, establish more institutes. Somewhere this matrix has to move beyond reservation. Affirmative action is not just reservation. There has to be something more: Justice Ravindra Bhat

I agree with Your Lordship completely. But here we are not debating that issue and court cannot do it: Sibal

It would involve issues like financial resources of State, ability to establish schools, find teachers. All that is now within the domain of this court in the context of the current case: Sibal

Sibal reading statistics regarding share of OBCs and SC/ STs in govt jobs and vacancies.

Court asks for data regarding vacancy position in general category.

Your Lordships have to leave it to States and Centre with regard to how to take affirmative action and the way forward: Sibal

Sibal cites data on computer and internet penetration to contend how SEBC students without access to the same might have suffered during pandemic when education went online

In Indra Sawhney, majority judges rejected the Mandal Commission report: Sibal

What the Office Memorandum did was to give effect to respective State lists.
The court ruled that the lists would be valid and enforceable: Sibal

The court (in Indra Sawhney) was only dealing with OM where reservation was less than 50 percent. Not Mandal Commission report: Sibal

Indra Sawhney was decided in tumultuous times. It was decided at a time when nation needed peace and tranquility. It was not a judicial exercise but a balancing act to put quiet to the tumult: Sibal

The balance has to come from statistics. It cannot come from Articles 15(4) and 16(4). So what is the Constitutional basis on which Indra Sawhney said more than 50 percent cannot be allowed: Sibal

Sibal reads submissions; argues that the Centre should look into the reports of State governments to amend its own lists.

Sibal: There is a historical context to the State lists recognised by the Central Government, recognised by Indra Sawhney and...recognised by the Constitution.

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Sibal: Now Mandal Commission report has become the basis for all kinds of things...buried by nine judges, but resuscitated by others.. as if Mandal has been accepted by 9 judges

Court comments that the Mandal commission report has been accepted to some extent.

Sibal: No, Mandal has not been accepted, State lists have been accepted which was accepted by Mandal. Nothing more has been accepted in Mandal.

Sibal reads a judgment

Sibal: The majority does not rely on Mandal. Justice Kuldip Singh says it is bad. So the majority says Mandal is no good, we'll just go dehors Mandal.

Sibal: What's the principle? Unless you have data, statistics, you can't fix percentages. And Indra Sawhney had no data.

A large number of castes were picked up from State lists, Sibal goes on to read.

Sibal continues reading: Mandal Commission virtually rewrites Article 16 (4) by substituting caste for class.

Sibal: Why should Indra Sawhney be taken as the gospel truth for fixing percentages in the absence of data?

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Sibal argues that he is arguing on the underlying need for data, statistics in deciding whether the principle of equality has been violated or not.

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Sibal says he will make submissions on other aspects tomorrow.

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Court poses a question.

Court notes that thrust of Sibal's argument is that court has not gone into validity of Mandal Commission report. However, if OM under challenge was based on Mandal report and OM was upheld, why can't it be Mandal commission report has been accepted?

Sibal says he agrees to the extent of the 27% reservation for OBCs. However, he argues that this is not so for extending reservations beyond 50%

Sibal: If the state today says the situation requires beyond 50%, that's not been decided by Mandal.

Bench has risen. Sibal to continue submissions tomorrow. Hearing over.

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Maratha Reservations case, Day 6: Indra Sawhney was a balancing act decided during tumultuous times: Kapil Sibal argues for Jharkhand

Read LIVE account of Supreme Court hearing today -

barandbench.com/news/litigatio…