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[Day 8] 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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Hearing commences. Senior Advocate Shekhar Naphade to make submissions for the State of Tamil Nadu.

Senior Advocate Mukul Rohatgi informs Court that he is appearing for Chhattisgarh, Karnataka and Tamil Nadu. Says court may hear Napahade first and then he would make submissions for the other two states.

Senior Adv Napahde makes submissions on why the Indra Sawhney case should be re-considered.

Naphade: All judgments after Balajai including Indra Sawhney proceed on assumption that 50% is the rule and that's a part of the ratio of Balaji's judgment.

Naphade: It is extremely difficult to cull out as to what is the ratio in Indra Sawhney on this aspect of the matter. I want to take you through a few paragraphs...

In order to see what the true ratio of the Indra Sawhney case is, it has to be revisited, Napahde argues.

Naphade reads from the Indra Sawhney case. He reads that whether or not reservation is excessive would depend on adequacy of representation in a given case, that maximum of 50% is neither based on scientific data nor on any established and agreed formula

Naphade: This militates against the view taken by Justice Jeevan Reddy. Now kindly come to the view of Justice Sawant

Naphade reads that Justice Sawant had also observed that it depends on facts

"In this connection, one more fact needs to be considered from a realistic angle. A mechanical approach in keeping reservations in all fields and at all levels of administration and that too at a uniform percentage is unrealistic": Naphade reads from Indra Sawhney case.

Napahade continues reading reads that it is "adequate representations and not proportionate representation"

Naphade: Justice Sawa says proportionate, Justice..

Court: It is a constitutional provision. Constitution itself says "adequate"

Naphhade: The point is the moment we say that there should be an "adequate" representation, it is a principle of relativism.

Court: We are on a larger debate here. You are on 16, 15 doesn't use ("adequate")

Naphade: Since 15 (4) does not place any limitation, the field is open

Naphade: Article 15(4) has a non-obstante clause... The adequacy of representation has some correlation to the population of that backward classes in relation to the total population. How do you work this out? That's the question

Naphade reads further.

Naphade: This observation of Justice Jeevan reddy supports my thesis that 50% can't be the rule.

Naphade argues that the observations in the Indra Sawhney case on "remote and far-flung" areas being a criteria for exception to 50% limit on reservation is a passing remark, not the ratio

Court: It indicates the kind of exception...

Naphade: It is illustrative

If the judgement of Justice Pandian and Sawant are read together with 4 other judges, it becomes the majority judgment, Napahde notes.

Naphade: All emphasise that there is some correlation between the population of backward classes to the population of the state.

Naphade: We cannot decide adequacy of representation unless this parameter is taken into account

As such, Naphade asserts that exceptions given to the 50% rule in the Indra Sawhney case are a passing observations, not the ratio.

Naphade: At the highest it is an obiter... even if it is taken as the reasoning of the judge, it is still illustrative

Naphade argues that there could, therefore, be different perceptions as to the ratio of Indra Sawhney. As such, the Indra Sawhney case has to be re-considered as "We need to have a clear cut view", he submits.

Naphade makes submissions on the effect of Article 342A.

Naphade: When the president decides a list of backward classes under 342A(1), that can be restricted only to employment in the Central Government or to educational institutions run by the Central Government

In Keshavandanda Bharthi, your Lordships had held that federalism is part of the basic structure of the Constitution, Naphade submits.

On taking way State's powers with respect to the reservation, Naphade argues, "Is it not tinkering with the federal structure?"

Anything that would affect the federal structure, would violate the mandate in Keshavananda Bharathi, Naphade submits.

Naphade concludes.

Senior Advocate Mukul Rohatgi begins submissions. He is appearing today for Tamil Nadu, Chhattisgarh and Karnataka.

Rohatgi: The problem is that over the course of 30 years from Balaji up to Indra Sawhney, various judges have expressed different views understanding a particular view differently

Rohatgi: Balaji said broadly we accept 50%. But Balaji was about 68%. The following year, Justice Subba Rao said I don't understand Balaji the way Balaji understood...

Rohatgi while arguing that 50% should not be the limit refers to Article 371 (J) of the Constitution (special provisions for the Hyderabad-Karnataka Region)

If 50% limit is enforced, 371 (J) will have to be read into Articles 16 and 15, in a compartment not exceeding 50%, Rohatgi submits.

Court points out that other clauses under Article 371 say "notwithstanding anything in the Constitution." (J) doesn't say that.

Court: Why don't we see this as part of Articles 15 and 16, and not in addition...?

Rohatgi: 371 (J) came in much later. It could have easily said notwithstanding 15 and 16, which would have been in my favour ...

Rohatgi briefly loses connection to virtual hearing.

Rohatgi rejoins hearing.

He submits that Article 371 (J) is also crucial in understanding if 50% is valid or not.

Rohatgi adds: It is imperative that these matters should be re-examined.

Rohatgi: 371 (J) talks about domicile based reservation.

Rohatgi: This is also a concept in this Constitution today.

Rohatgi also refers to special provisions for Sikkim in the Constitution, referred to by the Court

Rohatgi: You have different rules, procedures to follow different things.

Rohatgi: India is a country that integrates all these things. Cannot have a blanket guillotine of 50%. We are an amalgam of different laws, identities...

Rohatgi To say "50% forever will not be breached by the whole country forever" ... it is impossible to envisage that a court fiat, where the constitution does not say so... we have to look at India as a whole - its aspirations, changing demographics...

Rohatgi: These provisions are a pointer to that. That is why there should be a relook (of Indra Sawhney case)

Rohatgi says in Chhattisgarh scheduled caste population is 12% and Scheduled Tribe population is 31.7%

Rohatgi: 44% goes to SC/ST, where the list is prepared by the Centre. In addition, our law only provides 14% for OBC

Rohatgi: This is a State which is really, truly has been backward because of its remoteness, Naxalism... yesterday I read in the papers we have lost more policemen

Rohatgi submits that though 20 years have gone by after a separate State of Chhattisgarh has been carved out, backwardness and poverty continue.

Rohatgi: With 40% of SC/ST, the State was modest in keeping only 14% OBC reservation.

Court recounts that Senior Advocate Kapil Sibal was saying that backwardness was for the state to tackle.

Court: In 20 years, what have you done?

Rohatgi: In an ideal state, there should be a school, doctor every 5 miles.. no doctor is willing to serve... Nobody wants to work in these areas. You have nyalas killing, blowing petrol pipelines

Court: Chhattisgarh may therefore fall under the exceptions in Indra Sawhney. You can exceed 50%

Rohatgi argues that he accepts AG Venugopal's arguments that if "Article 342A is considered the same as 341 and 342, we are heading towards disaster."

Since Article 342A refers only to the "Central" list, it is clear that as far as Backward Classes are concerned, there are two lists (State and Centre), Rohatgi argues.

He adds that it would be a violation of Federalism otherwise.

Rohatgi concludes.

Senior Advocate Jaideep Gupta is now making submissions for the State of Kerala.

Gupta contends that the Indra Sawhney case requires a re-look if it is putting a 50% limit on reservations "because (if that is the case) much water has flown since then."

Gupta submits that when the Indra Sawhney case was considered, there was an understanding that only historical backwardness was supposed to be rectified.

Gupta: Economically Weaker Section was not considered at that stage. We have to take this additional factor

Gupta: This (EWS) cannot be seen as part of the 50%. Amendment to the constitution is not intended to reallocate the existing 50%, it is supposed to be in addition. It says so In Article 16 (6)

Gupta: At the very least, your Lordships will have to consider, after (the 103rd amendment), whether cap in Indra Sawhney can remain

Gupta also makes reference to how federalism is a
part of the basic structure, as laid down in at least 6-8 judgments from Keshavanadha Bharati's case to UOI v Maharashtra

Gupta: Article 342A does not cover Article 16 specifically.

He points out that under this provision, the President only "may" notify the list

Gupta: ... so he may not. That means that the State loses...

Court poses queries on whether Article 342A does not cover a "broader" category of "backward classes" (as opposed to "socially and educationally backward classes")

Court notes that in Indra Sawhney case also, it was observed that backwardness ties to "social backwardness."

Court notes that Article 16 (4) followed Article 340, which was part of the original condition.

Court: 340 was always understood as the centre's power to identify backward classes, including socially and educationally backward classes.

Gupta: There are judgments which say backward classes in 16 is wider than socially and educationally backward classes in 15...

Court: But three judgments in Indra Sawhney has said social backwardness is what feeds into the educational backwardness. There's a connection.

Court: You already had an Article 340, NCBC, why should the centre's powers be restricted by 342A?

Gupta contends that the powers under Article 342A are an addition to existing powers, that it is an extreme proposition to say that only the President can specify State reservations and that the State is denuded of powers with respect to specifying State reservations.

Gupta: This would mean that elected representatives of the state will not have a voice, but the executive- president sitting in Delhi and the governor - will have the full power of deciding who is a backward class in a state. If there is conflict, there is a huge price to pay

Gupta: Assume there is an agitation in the state - the state, the legislators will have no powers. They will have to persuade the president.

Gupta adds that in a federal structure, there can be different regimes at the Centre and the State.

Gupta: This will become an issue of great political conflict.

Article 342A is an additional power, wherein President may notify the list if the State has not done, Gupta adds.

Gupta concludes.

Dy AG Vinay Arora argues for the State of Uttarakhand that if the State's power of identifying classes for reservations is taken away by article 342A, "nothing will be left."

Arora: The elected government knows more of the needs of their region, the regional aspirations.

AAG Arun Bharadwaj makes submissions for the State of Haryana. Refers to concerns over what would happen if the President does not notify SEBC list under Article 342A after the 102nd amendment.

Bharadwaj: if a proposition has come that all state commissions become redundant after the 102nd Amendment, that will basically leave the States with no SCBCs, would lead to chaos.

Bharadwaj submits that AG Venugopal rightly argued that the rights of the States would remain.

Bharadwaj concludes.

Court asks if any other State would like to make submissions.

Senior Advocate CU Singh argues for a respondent who was party to Bombay High Court proceedings.

Singh says he would like to show the Court quantifiable data with respect to Gaikwad Committee findings.

Singh: This is the heart and soul of the exercise, which has made very light of by the petitioners.

Singh: Your Lordships were shown the Terms of Reference by Mr Patwalia.

Singh reads the Terms of Reference (ToR) of the Gaikwad Committee

Singh: Please note the second ToR - "to define exceptional circumstances.. in the present context..."

Singh continues reading ToR.

Singh reads out from the report how data was collected by the Gaikwad committee to conduct their study, that five agencies were nominated to aid the study, on how public hearings were conduction "in addition to the information collected for the sample survey"

Singh submits that public notices for the public hearings were issued well in advance for views to be put forward for or against Marathas being included as a socially or educationally backward community.

Singh reads out how Gaikwad Commission found that historically when it was a princely state it was found Marathas were so badly represented that there were no Marathas in the staff.

Singh: There is a detailed examination of the pre-independence and post-independence period.

The Court notes that in one part of the report, it is shown that Marathas are much better than Kunbis, OBCs in all sectors

Singh: This is not a comparative table... It is showing what is the primary occupation - agriculture and agriculture labour...

Singh adds that Marathas being engaged in agriculture, agricultural labour with low means of subsistence was one of the factors considered to gauge whether they are backward. He urges Court not to look at one chart alone, a detailed analysis has been carried out, he adds.

In Page 838, it says Marathas are doing better than the others, Court says

Senior Advocate Patwalia argues that it is not that they are doing better, they are doing the worst.

Patwalia: They are all agricultural labourers

Patwalia says that since Commission wanted to see if Marathas were backward, had selected those villages in rural areas with a higher Maratha population.

Court says it is not convinced with the correctness of this approach in the study.

Court: How can you select two villages where Marathas are dominating in the village and leave out villages where Marathas are not in majority and then compare them?

Patwalia: Backwardness has come from assessing how they are living...that is the background in which your Lordships have to see this chart milord.

Court: Commission has collected a large number of data, there is no doubt about it... but whether from the data, the conclusion they have arrived at, can be supported? That is the only question.

Patwalia: These are people who are social scientists, experts... ultimately they could have assessed only by looking at how Marathas are faring.

Patwalia argues that one more indicator that Marathas are backward is that: When they migrate to the cities, they migrate mostly to the slums

Responding to the submission that there are Chief Ministers who are from the Maratha community, Patwalia argues that 30% of the population is Maratha.

Patwalia argues that if they vote, then a Maratha CM may get elected. This is not an indicator that the Marathas are not backward. We have had Presidents from backward classes in the past, he adds.

Court says that most people who migrate to cities may do so to slums, depending on educational factors.

Court: Do you say merely because they have migrated to slums in cities, they are backward? What is this argument?

Patwalia submits the educational, social levels of Marathas is low.

Patwalia: They need not have compared with anyone else.

Court: The chart shows that their (Marathas) position is better, that was our only observation

Singh: It is not.

Court responds that it was Singh's submission that the majority of Marathas are in agriculture & agricultural labour, which indicates that they are backward. That need not be the case, Court says.

Court: It is not the only indicator for backwardness

Singh: That is not my argument... I was showing that the Commission took into account a wide plethora of factors to find that they (Marathas) were socially, educationally and economically backward.

Singh: You have to look at the aggregate of the data. Not one chart. That chart also shows they (Marathas) are backward.

Singh continues reading the Gaikwad committee report on how the analysis was done, the findings etc.

Singh: We are not saying that Kunbis are well off. We are saying it is a deplorable situation. To claim that this (Marathas) is forward class and not a backward class - it boggles the mind

Singh points out with 77% of Marathas being agricultural, they are naturally deprived of some amenities.

Court: How many Marathas are in public employment? That is the most relevant consideration for determining...

Bench rises for lunch. Senior Advocate Singh to continue submissions after the break.

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Bench re-assembles. Senior Advocate CU Singh continues submissions.

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Court: In the percentage of service, Marathas is higher than everybody else

Singh: The point here is the representation.. The OBCs in Maharashtra are 98% - means 98% is filled by reservation... 97% or 98% of OBCs are covered.

In IAS, IPS, IFS, higher education, intake in engineering and medical colleges, there is an absolutely negligible proportion of Marathas, Singh argues.

Court says the examples cited may not be accurate.

Court: For representation in central services, as of now they have to compete in the open category, since in the central category they (Marathas) are still not notified (as SEBC)

Singh: Marathas are shown to be educationally, socially backward.

He says the Court must look at the Gaikward committee report holistically, and not just dwell on one factor in isolation.

The OBCs form 32% of the Maharashtra population, Singh informs from the report, and the reservation is also around 32%

Singh: For OBCs it is almost cent per cent reservations to match their population

Court: You are saying all the other OBCs have 97% - 100% reservations... So Marathas also deserve (similar representation)..So grant of 16% reservation is not excessive, but actually less?

Singh: The Commission having found that they (Marathas) are socially and educationally backward, and therefore deserving of reservation ... (1/2)

... in the context of a State which has almost a cent to cent reservation for OBC, what is the justification for a class much worse that OBCs to not get such reservation? : Singh argues

The discussion moves to the proportion of Marathas in IAS, IPS etc.

Court says that instead of taking Maharashtra's list of these services, it would be more accurate to take the all-India figures since it is likely that such officers don't get the home-cadre.

Court: If all India figure were taken, and how many Marathas were in the IAS or IPS, you may get a clearer picture.

Singh tells the court that the list is not just of direct recruits and includes promotions within the State.

Patwalia: Promotees and direct recruits... Second, the analysis is the same for other reserved categories also.

Court notes that16% (reservations) is not a figure that can be taken lightly

Patwalia: It is not more than the OBCs and it is less than the population

Singh submits that Mumbai University has 0% of Professors and 7% of Assistant Professors from Maratha, whereas Scheduled Castes have more representation.
The representation is abysmally low, Singh says.

Singh further submits that statistics were taken from Savitribai Phule University, Shivaji University, Sholapur University, Nagpur University etc.

Court says that the question is not whether such information was collected but whether on these figures, it can be concluded that Marathas are backward.

Singh argues that the Commission has examined social backwardness, educational backwardness and representational

Court asks: Your argument is that because they are not adequately represented, then they are educationally backward?

Singh argues that the fact that Marathas are not able to reach that level is an indicator of their backwardness.

Singh adds: There is a huge amount of data on social and educational backwardness in volume 6 (of submissions to the Court).

Singh makes submissions on the representation of Marathas in medical courses, Ayurvedha, Siddha, Unani courses.

Court again expresses reservations about the argument that lack of representation will equal backwardness

Singh: ...A whole class of people are being left behind... It's pathetically low.

Singh makes submissions on how analysis was done to gauge the social/ educational backwardness of Marathas.

Refers to the houses of Marathas, rates of suicides, migration rates (which Singh says is indicative of the hardships and poverty of Marathas), nature of medical treatment

Singh: Please don't look at it as a comparison. If comparison has to be done, it has to be done with the OBCs. Because Kunbis and Marathas were found to be in the same class.

Singh: When we look at commission's report, we don't disaggregate by one chart or another. Overall picture has to be looked at. That overall picture is clear beyond doubt that this is much deeper research than any other commission on a socially & educationally backward community

Singh recalls that when he started legal practice, there was one Maratha Judge in the Bombay High Court, Justice PB Sawant.

Singh: He was the only Maratha Judge and if I am not wrong, he was the first...The fact is the community does not have that representation

Court: How many Maratha judges are there in the High Court now? We are curious

Singh: There will definitely be more, but it will still be a small proportion. I will get that figure for you

Singh notes that after Justice PB Sawant was elevated to Supreme Court, only Justice BG Kolse Patil was left (at that point) as a Maratha judge.

Singh argues that being politically powerful does not mean the community cannot be socially and educationally backward.

Singh: Yadavs in Bihar may be politically powerful, but they are still OBC. One has nothing to do with the other

Singh: Politically, you may not be backward. But you may be socially and educationally backwards. Marathas are socially and educationally backwards.

Singh responding to criticism regarding the sample size of the Gaikwad committee study argues that sample surveys are by nature to have a small sample. It cannot be a large, unmanageable number, Singh adds.

Singh concludes.

Senior Advocate Paramjit Patwalia is making submissions now.

Patwalia: It (Gaikwad Committee report) is an advisory document to advise the government as to what is the further course.

Patwalia: Rightly so, this (Gaikwad) report has not been challenged in any writ petition except in one case filed by Mr Talekar where his focus is on getting reservations for Muslims.

None of the other writ petitioners has raised a challenge to the Gaikwad committee report, Patwalia submits.

Patwalia: There is only one petition, where the focus of the petition is on getting reservations for himself

Patwalia: It is not as if this is forever, the report talks of review in 10 years

Patwalia: This report being in the nature of advice is not the subject matter of judicial scrutiny like your Lordships would scrutinise a judgment.. The purpose of the report will have to be kept in mind.

Patwalia says that the Court should defer, give due weightage to the State's decision unless it is found to have been taken without considering relevant data, that measures are excessive etc.

Patwalia concludes, he says that he also adopts the submissions made by CU Singh.

Amit Kumar, Advocate General of Meghalaya makes submissions.

Court: What is the percentage of tribals in your State?

Kumar: 85.9%, as per 2001 census

AG Kumar adds that there are extraordinary circumstances in Meghalaya, that 50% rule may not be strictly applicable.

He says there is a historical background to it and that the Constituent Assembly has also recognised the unique situation in the North-Eastern States.

Kumar submits that parts of the North-East at one point were excluded areas and that there were parts that were also never officially part of British India.

He argues that there has been a reservation policy in place at Meghalaya since 1971, which is working well.

Kumar concludes.

Advocate Sudhanshu S Choudhary makes submissions for a respondent.

Choudhary argues that while excessive reservations may be struck down, the limit of 50% cannot be imposed.

Choudhary on the aspect of whether reservations should be fixed on the basis of adequate representation.

Choudhary: Adequacy means satisfactory. This is of course subject to what the State feels.

Choudhary makes submissions on the difference between Articles 15(4) and 16 (4), which he says is shown in Nagaraj's case.

Choudhary concludes.

Advocate Pingle seeks to make some submissions

Court: You are not a ringleader, you keep interrupting all the time. Please keep quiet

Senior Advocate Mahalakshmi Pavani appears for an intervenor, a student who took CLAT & who fell under SEBC. She says she is supporting the Act

Pavani submits that there was no dissent in the Gaikwad commission's report.

The findings of the commission can be summed up in a nutshell, that Marathas are isolated, segregated, migrate and are displaced, Pavani submits.

Senior Advocate V Shekhar makes submissions.

He notes that there is an attempt made to argue that the Maratha community will make an inroad into 27% OBC reservations.

This is not so, Maratha reservations are over and above, he says.

Senior Advocate Tapesh Kumar Singh makes submissions, he appears for Maharashtra public service body.

Singh: My role is circumscribed under Article 320 (4) which prohibits me from making any submissions with regard to Article 16(4)

Senior Advocate Arvind Verma makes submissions for an intervenor, supporting the Maharashtra SEBC Act.

More counsel seek to make submissions for intervenors. Advocate Shriram K Pingle informs that he is appearing for a petitioner.

Court says it will continue hearing tomorrow. Bench rises. Hearing over.

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[Maratha Reservations case] Being politically forward does not mean community is not socially, educationally backward: Senior Advocate CU Singh

Read a LIVE account of the Supreme Court hearing today:

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