Thread by @LiveLawIndia

#SupremeCourt hears plea challenging removal of 4% #OBCReservation for Muslims in Karnataka close to elections.

SG Mehta: My lords please grant time.

Sr Adv Dushyant Dave: It was already said that it will be taken for interim relief on Friday.

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Dave: My reservation is removed and given to some else few days before elections. They have removed 4% reservation for Muslims in Karnataka. It's completely against a series of SC judgements. Completely unconstitutional! Why is it done overnight? On the eve of election?

Dave: Without any report? It's against the 1996 Statute. I am shocked at how the government can add this in the GO!

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Dave: Please see the categories. "Percentage of reservations for OBCs shall be filled at 15%..."

Justice Nagarathna: This was modified to include SCs and STs.

Dave: It was modified on two occassions. See reservations for muslims.

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Dave: Where is the question of saying that there is no empirical data? This is a public document - taking away peoples' rights!

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Dave: The Buddhist and converted Christians were removed from this category. They were added in different category.

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Dave: 16(4) begins with a non-obstante clause saying "notwithstanding 29..."

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Justice Joseph: What are Dr Ambedkar views?

Dave: Dr Ambedkar says that reservations may be granted to communities as decided from time to time and it may include Muslims.

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Sr Adv Sibal: Dr Ambedkar gave a speech in Columbia. They have misrepresented the statement. Indra Sawhney says that the statement said just the opposite.

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Dave: On the basis of empirical data and material, it has been found that Muslims are a backward community in Karnataka and they deserve reservations. If you want to remove it, you remove it after a study. But your interim report says don't remove.

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Dave: Where was the need to touch it? On the eve of elections, the elections are two days later...your lordships have held that reservations cannot be for political reasons.

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Dave: Your Commission report says they need reservation but you place false statement saying that there is no empirical data.

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Justice Nagarathna: How do they revive?

Dave: The 2002 notification continues.

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Justice Nagarathna: The persons who have been now granted reservations - they were already granted reservations. What is the difference? The percentage goes up.

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Dave: They have done this summarily. They can't act like this.

Justice Nagarathna: But you didn't answer, what would happen if they did this?

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Dave: Then we lose out! Why should we lose out?

Sr Adv Gopal Sankarnarayanan: EWS includes us along with other groups. Earlier, the whole community was being treated as backward classes other than creamy layer.

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GS: Earlier the identification was community. Here you're starting the other way round- you're starting with individual families.

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Dave: If this was based on a study I would understand, but this is without any study.

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Justice Nagarathna: In supersession of state of affairs, if a fresh GO is issued, whether that GO will go is what we're asking?

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GS: The two notifications - 2001 and this one stand side by side. That notification still holds but the only thing this notification does is that the percentage goes down. The reclassification goes away.

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GS: One is that the last comprehensive report is Rahman Khan's report of 1995. That states that Muslims have lowest rate of literacy, highest drop out rate, 64% earn less than 6000.
Indra Sawhney says commission report is required.

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Sibal: Since 1994-2023 i have been entitled. For 23 years I am backward and now suddenly I'm in general category? Without a study? Can it ever be? This is violative or 14 itself. What is stated is even worse- it says that what we were doing for 30 years was wrong?

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Sibal: It's taking away reservations. As per Chinappa Reddy report, I'm next to SCs and STs in backward category. And now I'm placed in general?

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The bench rises for a short break.

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Prof Ravivarma Kumar: Category 2B- it shows 0% which means that Muslims are not entitled to any reservations as SEBCs. So that means that admission of educational institutions have begun and we can give no benefits under 15(4).

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Kumar: They have no power to transfer is from SEBCs to EWS category. Entire Christian community is included, Jains are included, Buddhists are included. All other minorities are included but not muslims? Why? On ground of their religion.

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Justice Nagarathna: Prior to this other notification was there anything else?

GS: No, there was no other notification. This is the first time.

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SG Mehta: They didn't answer what will happen if they give me a week to answer- other than hyperbole. Chinappa Reddy report didn't say muslims are backward. I will place some more commission reports. Muslims who are OBCs are already getting reservations.

Dave: Please don't make incorrect statements. Chinappa Reddy does say that all of Muslim community is SEBC.

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SG Mehta: Please see- these are all muslims- Pinjara, mansoori, etc...They are all OBCs. I'm reiterating- please allow me to reply. There are no admissions starting.

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Justice Joseph: Is there a provision for interim report?

SG Mehta: There is no bar. Power to file a report includes power to file interim report. I would like to show something else.

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SG Mehta: I am instructed to say it's true. There was no empirical data or anything - as a religion they were included for reservations.

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Justice Joseph: On the face, they have been enjoying this position for a very long time...

Kumar: 150 years my lords.

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Justice Joseph: On basis of documents produced, Muslims are backward and then suddenly it is changed.

SG Mehta: Can an interim order be that sudden?

Justice Joseph: You provide us assurance.

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SG Mehta: I can't provide assurance, they didn't give us any time...

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Justice Joseph: As a student of law, it seems that the ordinance is based on fallicious presumptions.

SG Mehta: I will convince you otherwise. It's not something which cannot wait for a few days.

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Justice Nagarathna: This is the season of admissions. Schools reopen in June or even earlier. Whether they're going to act on this report, we must know.

SG Mehta: We're in April! 17th April- can something irreversible that can happen?

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Justice Nagarathna: In Andhra...

SG Mehta: In Andhra there was no question of other communities getting benefits so there is factual difference.

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Justice Joseph: We're just saying that prima facie the order you have passed appears to suggests that the foundation of your decision making process is highly shaky and flawed.

Justice Nagarathna: It's on an interim report. The state could have waited for final report.

Justice Nagarathna: What was the great urgency?

SG Mehta: Unless they can say that there is some admissions- that is in May. We're in April. Without reply if your lordships decide it may be unfair.

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Rohatgi: I am for Vokkaligas and Lingayats. This is a case of grant of the quota to someone else. I am only saying that unless something is to happen between today and Monday, it'd be unfair to pass an order. Because my quota will also go.

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Rohatgi: At the end of the day, it's a matter of 4 or 5 days. I only have complaints of these people.

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Justice Nagarathna: I could ask what is the prejudice which could be caused to you in 4-5 days.

Rohatgi: It's for the petitioner to show prejudice, not for the respondents.

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Rohatgi: Please see a 7 judge bench of the AP HC. In identical case- here the government wanted to give so the court said that in a positive order you can...

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Justice Joseph: Please see this other order...

SG Mehta: There was no EWS then- that changes the position - it also changes the position of Indra Sawhney.

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Justice Joseph: The GO seems to be in the teeth of commission's report.

Rohatgi: There are two questions - what does the report say? We will place that before you. We're right now going on presumption that the reports say that. Let us first see the reports.

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Justice Nagarathna: Vokkaligas and Lingayats were earlier also reserved. Today what has happened is that 4% of reservations is completely knocked out - Muslims are without any reservations now.

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Justice Nagarathna: By an interim order, they're denied any reservations.

Kumar: There was no hearing too.

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Rohatgi: 5 judge and 7 judge bench said that religion cannot be made basis for reservations.

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Rohatgi: Two HCs have taken this view. See the logic in those.

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Justice Nagarathna: Instead of religion, they are given on socially and economically backward classes basis.

Rohatgi: To say that all muslims are SEBCs is wrong

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Rohatgi: How can you say that all Muslims in India are socially and economically backward?

Dave: Not in India

Rohatgi: In Karnataka! Karnataka is also a large part of India.

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SG Mehta: Constitution doesn't permit any religion based reservation. That has been decided by a constitution bench.

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Rohatgi: Give me three days to file a reply. I will file both the judgements. You file the report. I'll study it. Because it's not just cancellation of 4% but also grant of 4% reservations to us.

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SG Mehta: They have not discharged their duty of saying that what will happen till Monday? It would be unfair to us.

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Dave: It's not that they're taken by surprise. This was served on 10th. I have seen the SG time and again- if HC makes order in evening, he takes it to CJI next morning.

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Dave: Interim report says don't touch the existing reservation without study.

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Justice Joseph: What they're saying is that they'll file a counter at the earliest considering court holiday. We'll hear on Tuesday.

Dave: If it's arbitrary on it's face, prima facie wrong, which it is, then it's duty of court to give interim relief.

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Dave: On a daily basis, admissions are being made, equities are being created. Reservations for medical, engineering...

Rohatgi: Every part is wrong! Medical happens at end of year, not in April.

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The bench discusses the matter.

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Dave: Reasons in the impugned order cannot be supplanted by the counter affidavit.

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Rohatgi: I will show you how hollow their case is in time. Wrong statements have been made.

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Rohatgi: It's all in the air. The writs would have been dismissed. I am not attacking your locus.

Dave: Keep it Monday but grant interim protection.

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Rohatgi: They're talking as if today some irreversible thing will happen. Nothing will happen.

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Rohatgi: It was refiled on 5th April. The order was on 27th March. So that's some 9-10 days. Then they say we'll be affected. How will they be affected?

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Rohatgi: Your lordships don't grant an ordinary stay unless it is shown that something irreversible will happen in 2-3 days. And today they come with a case devoid of anything...

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SG Mehta: Nothing irreversible will happen between today and Tuesday. I will not say beyond Tuesday but till Tuesday. Keep it on Tuesday.

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Rohatgi: Give us liberty to file affidavit by Monday.

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SG Mehta: I will say that nothing irreversible will happen till Tuesday. If something happens in some remote school somewhere, I can't say.

Justice Nagarathna: Instead of saying nothing irreversible, you should say no action will be taken.

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Justice Joseph: Time is granted to file reply till Monday, 17th.

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Justice Joseph: We record the submission of SG that no appointment or admission is going to be made till 18.04.2023 on the basis of the impugned GO.

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Justice Joseph: The other matters we're issuing notice in. Liberty to file additional documents.

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