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SC yet to decide on referring 50%-plus reservation case to 11-judge bench

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New Delhi: Arguments were placed before the Supreme Court today on the contentious issue of whether states should be allowed to exceed the 50 percent ceiling on reservation and on whether this issue should be referred to an 11-judge bench.

A three-judge bench of Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat heard the counsels argued in length before listing the matter for next hearing on September 3.

During the hearing today Senior Advocate Mukul Rohatgi submitted that the Mandal Committee itself says that there needs to be a review post 20 years and 30 years have gone by already.

“A surprising submission was made by Senior Advocate Arvind Datar in this matter. He said that the court cannot refer this matter if the court doesn’t start hearing it. I don’t know what that is supposed to mean,” Rohatgi remarked.

He added that for any type of case which comes before the court, if the bench feels at any stage, even while issuing notice, that the matter can be referred, they can do so.

Rohatgi also reiterated Senior Advocate Kapil Sibal’s argument and submitted that if the majority of the states have breached the 50 percent limit, then the order in the instant case will have significant ramifications.

“If the Constitution has itself breached the limit, then why not refer this and consider it again? This is only a question of tagging the matter. We have had a reference to 5-Judges and to 7-Judges in the month of August. This must be done together. Can it be said that this will be done separately from the 5-Judge bench? All these issues are interwoven,” Rohatgi said.

Senior Advocate Kapil Sibal submitted: “When when you exercise a constituent power, you breach the 50 percent limit. The 9-Judge Bench had kept the limit because they said that exceeding 50 percent would breach the Equality Clause, which is a part of the basic structure. He added that Parliament has already breached the limit. When the constituent power is to be tested, it will be tested on the touchstone of Article 14.  The Union of India itself states that 50 percent doesn’t stand in the way and it can be breached, then that means that Indira Sawhney is no longer good law.

Senior Advocate Abhishek Manu Singhvi submitted that the petitioners themselves in this case have framed the matter as having major constitutional issues, so to suggest that the contestation and intersection of these Articles should not be referred, is a contradiction in their arguments. He submitted that the proviso to Article 145(3) is meant to enlarge the scope and not to limit it. It is a clarificatory proviso which is meant to state that the reference can be made at any stage.

Singhvi cited examples of cases like the Sabarimala reference, and even the issue with respect to the EWS reservation which was referred by the Chief Justice’s court in Janhit Abhiyan case, to say that every case has been referred at the threshold stage.

“Almost every State and Union Territory has exceeded the cap of 50 percent. Keeping this substantial issue in mind, and acknowledging the lack of arguments on behalf of the petitioners, please do consider referring the case,” Singhvi said.

The Supreme Court had on July 27 refused to pass interim stay on the Maratha reservation issue till September 1, after getting assurance from the state government that no recruitment will be made till September 15. The Court had decided that it will first examine whether the issue should be referred to a constitution bench.

The matter pertains to a the Socially and Educationally Backward Classes Act 2018, introduced by the Maharashtra government that grants 12 per cent reservation for Maratha community in education and 13 per cent quota in appointment to public service jobs in the state.

The Act was introduced with the purpose of extending reservation benefits to the Maratha community. The Act originally provided 16 per cent reservation to Marathas in public service jobs and education in the state. Later, it was challenged before the Bombay High Court which upheld the validity of the law but reduced it to 12 per cent in admissions and 13 percent in jobs. Thereafter the state government amended the act accordingly.

Read Also: SC Issues direction to prevent Shivling from erosion: Mahakaleshwar Temple

A batch of 15 petitions has challenged the law on the ground that it breaches the 50 per cent reservation threshold prescribed in the landmark judgment rendered by the Supreme Court in Indra Sawhney in 1992.

– India Legal Bureau

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