Thread by @barandbench

[Day 7] 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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Senior Advocate Kapil Sibal to continue submissions today. Read an account of the hearing yesterday:

barandbench.com/news/litigatio…

Bench Assembles. Senior Advocate Paramjit Patwalia says he will file some written submissions by Friday.

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Senior Advocate Gopal Sankaranarayanan: I have one unsolicited and unconnected suggestions... considering the vaccination policy... It may be a good idea for the judges to continue wearing masks. Just a suggestion

Kapil Sibal agrees with the suggestion, adds "As long as the arguments don't get masked."

Court : ...at least whatever we are saying is clear to counsel

Justice Rao adds that he has not worn a mask in one year (inside the court, during hearings)

Counsel: In a lighter vein, there is now a Rs 1000 fine for not wearing a mask outside court.

Court: For not wearing a mask inside the house, fine won't be there

Sibal adds that it is impossible to wear masks during briefings.

Court: In any event, all of you are safe, you cant be infected by us

Sibal: Your observations are infectious

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Sibal makes submissions on majority in Indra Sawhney case not accepting Mandal report.

Sibal: The OM talked about less than 50%... Mandal commission happened in 1980. Before 1980, you had the 1976 judgment in Thomas which set aside the criteria of the exception under 16 (4) and 15 (4)

Court:... it was a case under Article 16 (1), that judgment (Thomas) has nothing to do with 16 (4) reservation

Sibal: The basis of the judgment of Balaji had gone. Then came Vasanth Kumar in 1985.

Sibal says it was held that 16 (4) is not an exception while Balaji said 16 (4) is exception

Court points out that in Indra Sawhney, it was held that there has to be harmonious construction of 16 (1) and 16 (4)

Sibal: I am trying to say something else.. if 16 (4) and 15 (4) are exceptions to 16 (1) and 15 (1), the moment you cross 50%, it is bad. Now constitution benches have held it is not an exception...

Court says whether it is Ambedkar's speech or Balaji's case, the view was this is an exception

Court adds: The fact is that if reservation or positive discrimination or affirmative action is seen as the most predominant part, then why have 16 (1) or the classification in 16(1)

Court: Is this constitution meant to create a new class of backward? No

Sibal: I am not saying it must be less, more, 50%. I am saying you must give free hand... you may strike down reservation saying it violates 16 (1) or 16 (4). But there is no judicial power to say it must be 50%

Sibal adds that judgments have held it (reservations) must depend on the circumstances of the case. He cites the example of Kendriya Vidyalayas, remarks it is only for children of government servants.

Judge responds that is not correct, speaking as a former alumnus. Says KVs are not just for children of government services

Sibal responds it is for children of government servants and defence personnel first, and if any seats are left vacant they would be open to the general category

But there are hardly any seats left: Sibal adds.

Sibal argues that States should be allowed to ascertain reservations based on the circumstances.

Sibal: The balance has to be struck by the executive, not by the Court

Sibal: These are issues to be decided by a larger bench. These are very complicated issues never been discussed before... since Indra Sawhney, another 40 years. I am not saying I am right or wrong.

Sibal cites the example of backward sections of Muslims, Dalit christians.

Sibal: There are any number of dalits in these communities. Within the Sikh community, any number of dalits. Most converted.

Sibal: Suppose State were to say that we seek to uplift dalit Christians or backward Muslims - What's wrong with that? Where is the question of balance there? The balance is, these people are backward.

Sibal: Go to the hinterland of Orissa, Rajasthan Gujarat, you will find people waiting, crying to be educated and the State has failed. State has no means, no teachers.

Sibal: I will give you an example, I am sorry for digressing. I am ideologically committed to it, I will admit... teachers are not available why?

Sibal: When the process of recruitment begins, it is open to all... A person living a hundred km away from a village school may get the job, but he will not come and teach. Then there will be absentee teachers. That is the state of affairs.

That must be addressed by the State, not courts, Sibal contends, adding that if State does not do it, they must be thrown out.

Court notes that in some States, there are muslim communities identified as backward. Nature of SC/ST Order may say you must be Hindu, but these persons are also identified, Court observes.

Sibal agrees that some reservations have been given to these communities.

Sibal adds he is on something different: My question is if more than 50% reservation is given, why is it bad?... If you find that certain communities have never had the chance to get an education and you reserve schools for them, nothing wrong with that?

Sibal argues that without data, reservations can't be fixed.

Sibal: Mandal doesn't decide, because Mandal did not have data. Mandal just looked at State lists and said 50%

Sibal: 50% (limit on reservations) emerges from an observation which is obiter and becomes the law for 40 years.

Sibal: What is prohibited is hostile discrimination, not classification in Article 15 (1) ... You can have a classification. Hostile discrimination will be struck down. That is reflected in the NM Thomas case.

Sibal: Thomas says what should be struck down is hostile discrimination and not reasonable classification.

Sibal: The point that I'm making is, on any principle of law - dehors data, facts, analysis, with respect to a particular classification done for advancing the interests of socially and educationally backward classes - there cannot be any rule of per se discrimination.

Sibal: You have evolved a rule of per se discrimination, which is not permissible in law.

Sibal observes that agitations have happened during and after Mandal report

Sibal: It has happened with the Jat community, the Patidars in Gujarat, the Marathas.

Sibal argues that only because Marathas are leaders, that "doesn't mean that 80% of that community is forward."

Sibal: Data has to be analysed. Just because the Jats are in power, doesn't mean that the Jats are socially and educationally forward

Sibal reads a judgment of powers of Judicial review of the Court.

Sibal contends the Court's review power comes in to "check excesses of power when it is exercised, not before that."

Sibal: You can't in anticipation lay down a rule of law. The Jurisdiction under the Constitution (is with respect to decision making) ... is not to preempt discrimination through a rule of law

Sibal: Courts should not legislate and must not legislate. If the legislature says no reservations beyond 50%, that's their power...Courts can't say that, that's legislation.

Sibal: Indra Sawhney shackles the legislature of a State.

If Parliament were to say reservations beyond 50%, it would be struck down - how can the courts do that? - Sibal adds.

Sibal: Courts can't shackle the legislature like that...To say that Indra Sawhney is a good law for all times to come is unacceptable

Sibal argues that the legislature should be able to examine the issue, "uninhibited by the limits fixed by Indra Sawhney."

Sibal: I would be happy if your Lordships say this judgment is not cast in stone, that it is not the Lakshman Rekha...You have shackled the plenary powers of the legislature (through Indra Sawhney case).

Sibal refers to the chart detailing cases submitted by Senior Advocate Mukul Rohatgi.

Sibal: All these judgments... only on Article 16. And only judgment in Balaji on Article 15, 50% is obiter.

Sibal: Your Lordships would be doing yeoman's service to this country if you open up the channels for education for everybody, to the States. It would be a historic judgment. Now we are shackled, you will unshackle the states, we need that at this point in history.

Sibal: I have dealt with the judgments. Now I deal with the third part of the questions, subsequent constitutional amendments.

Sibal says Indra Sawhney case, 50% limit is no longer good law after 103rd Constitutional Amendment (reservation for economically weaker sections).

EWS reservation is in addition to reservation for other classes under Articles 15 (4) and 16 (4): Sibal reads.

The limit in Indra Sawhney can no longer be the benchmark for reservations: Sibal

Sibal: (EWS) Reservations can be extended up to 10% in educational institutions under Section 15 (6) and in employment under 16 (6) over and above the limit of 50% in Indra Sawhney

Sibal reads the amendments introduced by the 103rd Constitutional Amendment, reads that it is "in addition to" existing reservations.

Sibal: It was up to 50% till Indra Sawhney, beyond 50% for Economically Weaker Sections despite Indra Sawhney. That's what it is.

Sibal: If Indra Sawhney said that 50% is the limit because otherwise it would violate 15 (1), then this Constitutional amendment would per se be bad? I am not arguing against it, I am for it.

Sibal: You will have 50% for SEBC and (additionally) up to 10% for EWS. That also depends from State to State. I have shown the level of poverty in the country, look at the number of people living below the poverty line. You will make reservations for them, and you should.

Sibal says there is no need for reference to larger bench "if your Lordships says that 50% is not the Lakshman Rekha and (reservations beyond 50%) are not limited to those exceptional circumstances..."

Sibal: Because 1, that was not required to be decided in Indra Sawhney case and 2, 50% did not come up for consideration in questions before the court - so where is the question of that 50% being binding law?

Sibal argues that the approach may be that the Court examines the law in question if some state crosses the 50% mark for reservations and strikes it down if it is hostile discrimination (as opposed to crossing 50% being per se discrimination)

Sibal: But if you say that 50% is the Lakshman Rekha, necessarily it must go to a larger bench... Several states have already provided (reservations beyond 50%), have your Lordships struck it down? Why have you not struck it down?

Court says that if the matter comes to court, it would decide.

Sibal: But it is per se discrimination (if Indra Sawhney's 50% limit is the "Lakshman Rekha"). Where is the question of having to decide? Unless your lordships agree with me that it is not per se discrimination.

Court points out that the States can go beyond 50% in the exceptional circumstances enumerated in Indra Sawhney's case.

Sibal: That is not true in Tamil Nadu (where it is) 69% (reservations)

Court notes that this has been kept in Schedule 9

Court: If it violates basic structure, it can be struck down. The state can go beyond 50% if they show there are extraordinary situations... provided they are covered by that window in para 810.

Court says that it has already asked for the State's response so it can examine the concerned laws.

In light of the fact that since states have already crossed 50%, a larger bench has to see if the laws are good or bad, Sibal contends.

Sibal recalls that a few days ago the Parliament has passed legislation limited to Tamil Nadu whereby it has changed the list of SC/ST while elections are in progress

Sibal: So politics will be found everywhere. Union does not act dehors politics, nor the State. Politics is the heart of .... in this country

(Sibal makes the above submission responding to arguments earlier that a uniform SEBC list should be there so States do not extend reservations on political considerations)

Court says that it will only decide on Constitutional principles.

Court: There will be no presumption that power will be politically exercised by the legislature or the executive.

Sibal refers to certain questions raised in the Indra Sawhney case.

Sibal: What was to be decided in Indra Sawhney was those questions. Everything else is not part of the decision - that includes the 50% (limit on reservations).

Sibal reads from a judgment. Reads that the Constitution is a living, organic instrument; it cannot be static, must be construed broadly in line with needs of the time, that change is inherent in every decision process.

The constitution should be looked at through its spirit for generations to come, not merely as a document, Sibal adds.

Sibal concludes. Solicitor General Tushar Mehta seeks to make brief submissions for the Central Government.

Mehta says he would adopt Attorney General KK Venugopal's submissions.

Mehta: (102nd amendment) would not denude the States of power to declare socially and educationally backward classes. It (Article 342A) is an enabling provision that enables the Centre

Court raises concern that no notification of socially and educationally backward classes has been issued by the Centre under Article 342A till date.

Court: We understand that your submission that states are not denuded of power (to issue list of SEBC).

However, Article 342A that the President in consultation with the Governor has to issue a list of SEBC, Court notes.

Court: Can you make it a dead letter by not issuing a notification for all times to come?

Court: Does it mean there is a blank slate as of now? If this is to notify further (SEBC), existing lists have to be incorporated into the amendment.

Mehta: Existing list continues

Court: But (then) the existing list has to be part of the constitutional amendment act itself.

Court says it is not clear what is the correct interpretation of Article 342A, what is the effect of not having a list issued under Article 342A etc.

Mehta says that these questions will be answered when the Court considers the petition challenging the validity of the 102nd Constitutional amendment.

Court says, in that case, it will hear Mehta again on this aspect when that writ petition is taken up.

Mehta says that if the Court decides that States are not denuded of power to issue SEBC list after the 102nd amendment, then it may not have to address the challenge to the 102nd amendment (where the challenge is on the premise that the 102nd amendment takes away state powers).

Mehta assures that whatever questions the Court may have will be addressed.

Mehta adds that the Centre is of the view that the Maharashtra SEBC Act is constitutional.

Mehta: We construed this (Art 342A) to be a confined role of Central Government. Whether State's Act is constitutional or not in Maharashtra's case - in our view, it is Constitutional.

Advocate Manish Kumar makes submissions for the State of Bihar

Kumar is making submissions of the effect of Article 342A

After the 1993 Act, there is no provision in statute or Constitution that can save the central list, Kumar argues.

What is the effect of Article 342A on the State's power? Court asks.

Kumar: There is no effect on the State's power from Article 342A because...

Kumar: For Scheduled Castes, State refers to the list under Article 341, for Scheduled Tribes, the list under Article 342. For the backward classes, the State does not refer to the Central List, it refers to its own Act.

To exercise State's powers under Article 15 and 16, it will have to rely on its own lists, Court observes.

Kumar says that also for extending the benefit of reservations in employment, the State would identify the castes to be granted such benefit.

Kumar: My Act itself contains the identification of backward classes.

Court: When the Act was enacted, there was no issue. (The issue is whether) the Act will be impacted only after Article 342A.

Kumar: When Article 342A talks about the "central list", the amendment has made it clear that there are two lists and that 342A only deals with the Central List.

1993 Act has 2 features. There was a National Commission for Backward Classes, there was a list called Central List. This act has been repealed.. This national commission, earlier a statutory commission, has become a constitutionally establish commission u/ Art 338: Kumar

Kumar: Second, the list under the 1993 Act finds a place in the Constitution by way of 342A

Kumar:...Because of the 10% reservation for EWS, what has happened is that the number of seats earlier available to backward classes was reduced. There were cases where backward were selected in general category...their effective representation has been reduced because of 10%

Kumar: For Bihar, in 1993, it was 129 backward classes. Now the number has reached 174. There is a huge increase in the number of backward classes which covers a large number of additions of the population to claim reservations.

Kumar concludes.

Advocate Karan Bharihoke makes submissions for the State of Punjab. Argues that the State has powers with respect to other forms of affirmative action not within 50% limit as provided by Indra Sawhney case.

Bharihoke adds that States' power to identify or de-identify backward classes has not been impinged and that Article 342A is with respect to reservations for persons in Central Services and not State services.

Bharihoke concludes.

Senior Advocate Dr Manish Singhvi makes submissions for the State of Rajasthan.

Manish Singhvi argues that "backward classes" is broader than "socially and educationally backward classes", that Article 342A does not take away State's power.

Manish Singhvi argues that in enacting the 102nd amendment: Parliament was conscious that they are confining to the Central list.

Articles 16 (4), 243(6) powers are not divested from State after 102nd amendment. Those powers remain with the State. These are part of sovereign functions, welfare activities. States must have their own power of identification of their backward class of citizen, Singhvi argues.

Manish Singhvi: Otherwise, it will be a violation of our federal polity...Even the Union of India is conscious of the rights of the state. That is why the Attorney General is making those submissions (that there are two lists of SEBC, Central and State).

Manish Singhvi: Article 16 (4) is not an exception to 16 (1), it is a facet of 16 (1)...Lakshman Rekha is impermissible. If one right is an extension of another right, one cannot say that 50% is the Lakshman Rekha.

Manish Singhvi argues that States should be permitted to extend reservations beyond 50% if it finds a community is not adequately represented.

Singhvi: Judicial review should be case-specific and Act-specific. It cannot be on general principle of 50% limit

Bench rises for the lunch break.

Manish Singhvi seeks to make submissions for 5-10 minutes more in the post-lunch session. Court agrees to request.

Hearing to continue after the break.

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Bench re-assembles.

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Manish Singhvi continues: Backward classes citizens are defined at least in three provisions, Article 15 (4) ... 243D (6).

Manish Singhvi adds that even Indra Sawhney case has recognised that "backward classes is broader than socially and educationally backward classes.

Singhvi: It is not correct to say backward classes is limited to "socially and educationally backward"

Manish Singhvi: The Court has held that transgenders are backward classes. It is wrong to state that it is (based on) caste alone.

It is wrong to say that the operation of Article15 (4) will be confined to lists issued (by Centre) under Article 342A. It can be any class and the power is unfettered, Manish Singhvi argues.

Parliament in the exercise of powers of its powers of amendment has not taken away the State's powers. If it has, it would be a colourable exercise of power, encroaching on the State's powers, Singhvi argues.

As far as Rajasthan is concerned, we had 52 communities in 1994, Now we have 91 communities. We have a large population of SC/ST. We have 21% reservations, fulfilling our Constitutional mandate: Manish Singhvi

Our constitution is a written constitution, but it is a living constitution. It is never fixed. We never had a second, third republic, because every time there was a need, Parliament responded: Manish Singhvi

Indra Sawhney requires re-consideration because our State feels there must be a balancing test, whether in each particular case, State has exceeded its powers in crossing 50%, not that it should be a Lakshman Rekha: Manish Singhvi

Manish Singhvi concludes.

Senior Advocate Abhishek Manu Singhvi commences submissions for two respondents who were party to the Bombay High Court case, Vinod Patil and Sandeep.

@DrAMSinghvi: Material underlying the Constitutional amendments and statutes makes it crystal clear that the State's power is never intended to be inhibited or circumscribed.

Singhvi reads discussions preceding the insertion of Articles 338B, 342A etc. to the Constitution under the 102nd Constitutional Amendment.

Singhvi reads those reservations under that State, under control of the State, for educational institutions etc. under the State were beyond the purview of the proposed amendment.

Singhvi is reading from a Select Committee report that was presented before the Rajya Sabha in 2017, which can be read here:

prsindia.org/files/bills_ac…

Singhvi reads further:

"Committee observes that amendments do not affect independence and functioning of State Backward Classes Commissions' and they will continue to exercise unhindered their powers of inclusion/exclusion of other backward classes with relation to State List"

Singhvi refers case of Kalpana Mehta and ors. vs Union Of India and ors, which can be read here:

indiankanoon.org/doc/9416991/

Court asks Singhvi what was the issue in the Kalpana Mehta case. Points out that para 4 indicates it relates to approval for a drug, a particular dispute.

Court: Whether the statute was interpreted or not, I am just trying to ascertain that.

Singhvi says that the case deals with how and to what extent parliamentary committee reports can be relied on or reviewed.

Singhvi continues reading from the Kalpana Mehta judgment:

"... it is clear as day that the Court can take aid of the report of the parliamentary committee for the purpose of appreciating the historical background of the statutory provisions ..."

Singhvi continues reading the judgment, reads observations regarding parliamentary committees and their work.

Court remarks: Most of their work, they work beyond party lines. That's a plus point.

Far before Indra Sawhney, there have been State lists, for state/provincial institutions. It is Indra Sawhney that created this larger movement of having commissions, and you started having this Central List, Singhvi argues.

Central List was always limited to central institutions in States and Union Territories, Singhvi adds.

Singhvi refers Maharashtra SEBC Act. Singhvi reads various provisions of the Act.

Singhvi: There were lists in Maharashtra far before any Central List. There were pre-existing lists, that were protected in Section 18 (dealing with repeal and savings)

Singhvi: If there is an exercise of power, and the field is occupied and there is some collision, then there may be a live issue to decide. Today there is no central list, no actual collision, no actual occupation

Singhvi argues today the dispute is premature and hypothetical, and that the time for adjudication would only come in when a central list is provided for which provides either in the positive or the negative with respect to certain classes called 'Marathas'.

Singhvi: It would be wrong to denude the States of the power by mere interpretation of Article 342A or by way of the National Act of 1993 ...

Singhvi concludes submissions.

Senior Advocate S Niranjan Reddy argues for the State of Andhra Pradesh.

Should a State be restrained from exceeding 50% in view of what is said in para 809 of Indra Sawhney case? argues Reddy

810 para which otherwise says it cannot cross 50% in Indra Sawhney case may need re-consideration, Reddy argues.

Court asks Reddy if AP has reservations crossing 50%.

It is 50% with respect to backward categories... In relation to NCC and sports quota - exceeds by 1 or 2%: Reddy

Court: That is horizontal quota.. so it is within 50%

Reddy also informs Court that at one point 5% reservations was sought to be introduced by AP for Muslims, but it was struck down since there was already 45% reservations. A 4% reservation was later given. An appeal is pending, he adds.

Reddy says he adopts Sibal's and Rohatgi's submissions on the question over whether balancing is to be done between Articles 16 (1) and 16 (4).

Reddy: Different states which are placed unequally are being treated unequally when 50% becomes the thumb rule.

Reddy argues that Indra Sawhney should be reconsidered.

Reddy: If a particular State decides it wants to extend reservations under Article 15 (4) closer to the proportionate theory rather than just "adequate"... States should have a larger leeway in Article 15 (4)...

Reddy refers to para 810 of the Indra Sawhney case.

If on a reasonable basis, a particular State wants to give reservations exceeding 50%... my respectful submission is, by virtue of a court judgment, can that restriction remain?: Reddy

Court points out that a State can exceed 50%, but the Court would have to examine whether it is in the circumstances mentioned in the judgment.

Reddy responds that the burden of the Court is not lightened by the Indra Sawhney case, that in certain cases even 45% may be excessive

Court: It depends on the facts of each case

Court says that the 50% limit is for the interest of balance.

Court: The interests of the other groups also have to be taken into account

Reddy: Balance depends on the facts and circumstances.

Reddy makes submissions on Article 342A. Says it does not take away State's powers under Articles 15 and 16. Says that Article 342A is with respect to central institutions alone.

Section 366 (26C) defining SEBC is confined only to central government institutions, it does not affect provisions concerning the broader category of "backward classes", Reddy argues.

On what is the effect of not notifying a "Central List" under Article 342A, Reddy submits that until Central List is notified, the Central List would be the amalgam of different State lists, which would constitute the central list in view of the Indra Sawhney judgment.

AAG Jayanth Muth Raj argues for State Tamil Nadu

Raj argues that in Tamil Nadu, 94.6% are from backward classes comprising of OBC, MBC SC, ST etc. The reservations given are not on "proportional" principles but is "adequate."

Raj: If it was was proportionate, I would have given 94.6% reservation. I am giving 69%

Court: We are not making any observations with regard to your enactment or enactment not challenged

Raj responds that he is justifying how "this thumb rule of 50% will not come in my (Tamil Nadu's) way"

Indra Sawhney requires to be reconsidered from the State's view, Raj submits.

Raj argues that in giving reservations, State was not
required to provide exceptional circumstances, only required to show what is contemplated under Article 16 (4) of the Constitution.

Restriction of legislative power without data, applying. pan India principle (of 50% limit) will be taking away legislative power: Raj

Raj informs the court he is being led by Senior Advocate Shekhar Napahade. Naphade seeks some minutes time to argue for TN tomorrow morning.

Court allows Naphade to make submissions tomorrow morning.

Hearing over for the day; will continue tomorrow morning.

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[Maratha Reservations] Maharashtra SEBC Act is Constitutional in Centre’s view: Solicitor General Tushar Mehta tells Supreme Court

Read a LIVE account of the hearing today:

barandbench.com/news/litigatio…