Thread by @barandbench

[Day 10] 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 the hearing yesterday:

[Maratha quota case] Reservations may go, only EWS may remain, but these are policy matters for Government to decide: Supreme Court - Live Updates

barandbench.com/news/litigatio…

Bench assembles

#MarathaReservation
#SupremeCourt

Advocate Shreyas Gacche appears for five individuals in an IA who were appointed to some posts.

Court: Those who were selected, but not appointed, for those arguments were already made yesterday. If you want, you file written notes.

Senior Advocate Siddharth Bhatnagar makes rejoinder submissions.

Bhatnagar argues that in the Indra Sawhney case, for eight out of nine judges, the views on the 50% limit on reservations is very clear.

Bhatnagar recounts Senior Advocate Mukul Rohatgi had argued that Indra Sawhney was a 4:3:2 judgment.

Bhatnagar: At the highest, without prejudice, even if we accept this (Rohatgi's) argument, it would have no impact on the 50% rule, because the greatest common measure of agreement (in Indra Sawhney) is on 50% being the binding rule.

Bhatnagar tells court that the principle of "common measure of agreement" has been applied by Justice Vivian Bose in a 1950 judgment.

Bhatnagar says that only Justice Pandian opined that the 50% rule is not mandatory.

He adds that Nagaraj judgment has removed any doubt because it has approved the 50% rule.

Advocate RK Deshpande, assisted by Advocate Ashwin Deshpande makes submissions.

RK Deshpande makes submissions on events concerning the passage of Maharashtra SEBC Act; that at the time, after the 102nd amendment, there was neither a State list of SEBC, neither report of Backward classes was there, only a list of backward classes excluding SEBC was there...

Senior Advocate BH Marlappalle makes submissions to supplement Senior Advocate Pradeep Sancheti.

Marlappalle: Doctrine of extraordinary circumsances evolved in the Indra Sawhney case cannot be made applicable to a ruling, dominant community.

Marlappalle: In Lok Sabha, Maharashtra has 48 seats, 9 are reserved. Of the balance of 39, in the 2014 elections, 20 were from the Maratha community. In 2019, 21 from the Maratha community.

Marlappalle: The Legislative assembly of Maharashtra has 288 seats, 234 unreserved seats. The Upper House has a strength of 78. That makes a total of 312 legislators. In the 2014 elections, 166 were from Maratha Community. In 2019, the figure went up to 169.

Marlappalle: Cabinet of Maharashtra has 42 ministers. 21 of them are from the Maratha community...Maratha community has never been recognised as OBC by any state government

Marlappalle: The demands that they should either treated as OBC or equivalent to Kunbi has been considered and rejected by three State commissions and two national commissions.

Court asks Attorney General if he has any submissions to make.

Attorney General KK Venugopal: As regards the validity of the Act, yes. Otherwise, I stand by what I have argued

AG notes that the issue hinges upon whether the Court interprets Article 342A (102nd amendment) to have taken away the powers of the State in identification for reservation for backward classes.

AG: UOI has filed its affidavit in a connected matter relating to Tamil Nadu where Judgment has been reserved. UOI has expressly said that 342A is restricted to identifying reservations for the purpose of central government institutions.

AG: Today it is perhaps a hypothetical issue. If a judgment is delivered, then perhaps the issue will crystalise

Court: There is a challenge today. One can't assume it will go this way or the other. Your argument is that as the amendment exists, it does not take away state power. But if it goes the other way... you will have to say something.

AG: We are going to meet the challenge. If your lordships require... can file written note

Court: By Monday, you can give your written submissions on this issue

AG is making submissions now.

AG: If Parliament by legislation can override totally whatever List III topics (entries to Schedule 7, Constitution), surely they can do so by constitutional amendments. You cannot say List III subject is impacted by a mere Parliamentary law

Court recalls that the argument of some was that if the petitioner's argument is accepted and Article 342A is viewed as denuding power of the State, it impacts the federal structure. Court seeks AG's views on this.

AG: There is an express provision in the Constitution dealing with "backward classes". so far as backward classes are concerned, if it is traceable to Article 16 (4), it can't be a subject matter of "State Public Services"

AG reads Indra Sawhney judgment.

AG: The Supreme Court 9 judges have expressly identified the source of the power as existing in 16 (4)as well as 340. It is exclusive. It is a rather desperate attempt to invalidate a constitutional amendment...

AG: ... there is not a single State which has passed a law tracing its power to entry 41 of List II... Can it be said that this amendment makes a change to the public services of the state? I submit that it's a far cry

AG argues that the 102nd Constitutional Amendment cannot be held to be unconstitutional. He concludes arguments, says he will submit written submissions on Monday.

Solicitor General Tushar adopts the AG's submissions.

Mehta says he also appears for the State of Gujarat, which is also adopting the submissions of the Attorney General

Breaking: #SupremeCourt reserves judgment in challenge to constitutionality of Maharashtra SEBC Act which extends reservations in public employment and education for the Maratha Community and on the question of whether Indra Sawhney case requires a re-look.

#MarathaReservations

[Maratha Reservations Case] Supreme Court reserves Judgment on:

- challenge to Maharashtra SEBC Act
- challenge to 102nd Constitutional amendment
- whether the Indra Sawhney case requires a re-look

Read a LIVE account of the hearing today:

barandbench.com/news/litigatio…

#MarathaReservation judgment reserved