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Day 4 Maratha Reservation: Supreme Court issues notice on plea challenging validity of 102nd Constitutional Amendment

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The Supreme Court‘s five-judges constitution bench headed by Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and Ravindra Bhat continued its hearing for the 4th day, on the Maratha reservation matter. 

In these petitions the petitioner has challenged the Bombay High Court order which had upheld the constitutional validity of the Maharashtra Socially and Educationally Backward Classes Act 2018 (SEBC act) whereby an extended 16 percent reservations for Marathas in jobs and education under SEBC was reserved beyond the ceiling limit of 50 % reservation in extraordinary circumstances justified by quantifiable data. 

The bench continued hearing the submissions made by the learned counsels for the appellants.  

Sr. Adv. Marlappalle after perusing the impugned judgment of Bombay High Court exclaimed that it is only exclusive to President’s power, it was also stated by the senior advocate that it is an extra ordinary circumstance for exceeding the 50% reservation as state has considered the Marathas as Backward and as well the existing 19% quota for OBC would remained undisturbed.

Advocate Gunratan Sadavarte stated that the 102nd amendment of the constitution is accepted as it is, the reservation is supposed to get passed from the president and parliament which had not happened. 

Sadavarte also stated that arguing on backwardness of the Marathas is another point, the impugned judgment has procedural lapses. He also raised question as to when the issue of reservation would stand.

Sadavarte continued his submissions and cited the judgment in the case of Keshao Vishwanath Sonone that says that you cannot change the presidential list and order and also stated that he does not agree with Mr. Shyam Diwan’s statement that reservation may be shifted to 27%. ‘If this is accepted, backwardness is accepted,’ he said. Sadavarte also argued that EWS reservation is available to those other than persons to whom reservation under Article 16 (4) is given while concluding his arguments he exclaimed that Marathas are not the only citizens of India; we are also citizens of India. Only two Chief Ministers who came into power were Non- Marathas. This is an action plan for Marathas leaders.

While the Court questions, when State has the power to legislate on its services, would it not be part of power under Article 16 (4)? When they can set up their own institutions, don’t they have the right to say who can be admitted?  

Advocate SB Talekar argued on how the power to make reservation vests with the State, but the power to identify backward classes rest with President and Parliament. These arguments have not been dealt with.

Justice Ravindra Bhat stated that, ‘your grievance can be addressed by the National Commission… you can refer it to the National Commission, that you are backward class.’

Advocate Talekar submitted that unless the directions are issued, the state won’t consider. You want identification for the Muslims as backward class, all your colleagues have agreed, that identification is vested with the President.

Advocate RK Deshpande submitted  that Article 16 (4) uses “backward classes of citizens”. From these citizens, only a small portion of SEBC is taken out. Only the central list will operate for SEBC. For others, it will be the state list, which will be on the basis of the state commission’s recommendations. 

Advocate Deshpande also submitted that the State’s Power under Article 15, Article 16(4) for making reservations are denuded in so far as it relates to “Socially and Educationally Backward Classes”, but for other backward classes it remains.

The bench although had a different view on this aspect, that when parliament has the power to make law for inclusion and exclusion, why can’t we say that there is a state list for which parliament doesn’t have power?

Advocate Amit Anand Tiwari submitted that 102nd amendment has no procedural lapses and is competent and even before 102nd amendment, reservations were implemented by states through state commissions set up “with the assent of the president because it was a field occupied by Article 340.”  

The bench stated that the request made by advocate Tiwari is unreasonable and if some of his submissions are accepted then the bench would have to scrap the first three questions of referenece to the larger bench.

Advocate Tiwari concluded by saying that he doesn’t meant to scrap the 3 questions but the bench to consider remitting.

Senior Advocate Preetesh Kapur who appears for another petitioner in a writ petition challenging 2011 Amendment Act concerning reservations in Chhattisgarh.

Advocate Kapur state that the central list means nothing more than the Presidential list. Post 102nd amendement the state does not have the power to make appointment.

While the bench asked that there are certain schedule areas in Chattisgarh and have you said anything about that in your petition?

Senior Advocate stated that the above is not with relation to hill areas but to the extent of challenging the act, also urged the court to hear the arguments on question of law and other questions can be dealt by the High Court.

The Court ordered that the amendment act, 2011 has been challenged wherein percentage of vacancies arising out of retirement of class 1,2,3,4 has been raised. Issue raised where details of population indicates that there are some points which needs to be examined. The court was of the view that matter warrants separate consideration giving liberty to challenge the provisions in High Court under appropriate writ.

Similarly in another writ petition where counsels for the petitioner Advocate Jaikriti S jadeja had similar submissions challenging the Haryana Backward Classes reservation in 2016 be declared unconstitutional and void. The bench directed it to be posted before appropriate bench.

Advocate Amol Karanade who appears for another petitioner challenges the validity of 102nd amendment of India Constitution. The court issued notice and directed to hear the arguments after the present submissions are concluded.

Attorney General KK Venugopal stated after getting informed by the bench about the above writ that he will argue on it separately.

AG argued that when a special direction is issued by a 9 Judges bench and the government shows every indication to implement it, is it conceivable that an amendment to the constitution will be made, by which states are denuded of the right to identify backward classes?

If this be so, even if the government of India or Parliament decided that they would denude the states of Power, it would require an express provision to that effect.

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While AG perused the Indra Sawhney case and stated that if you deprive the State legislature of a State or State executive of this right given under Article 15 (4) and 16 (4) for identification the socially and backward classes, one would have to add a proviso or amend 15 (4) and 16 (4). Articles 15(4) and 16(4) from the very inception is recognised as a source of power, for the state as well as centre, to identify SEBC, because without identification one cannot make provisions for the advancement of the SEBC.

The AG also stated that there was a theory accepted by Indra Sawhney case that groups that were identified by the caste to which they belong would indicate social and educational backwardness. As a result states basically identify groups which were backward because of the caste to which they belonged, which deprived them of an equal opportunity to compete with non-backward or forward classes This is the genesis of reservations and benefits given to the socially and educationally backward.

AG moves on to put submission on Article 342A, inserted by the 102nd amendment to the constitution and argues that it is the central list alone that is to be covered by Article 242 A so far as the intention of parliament is concerned.

AG stated that so far as the States are concerned, they require having their own State backward classes’ commissions. Referring to Article 366(26C) AG states that the State’s powers are not touched and that only SEBC is defined for the purpose of the constitution. The rights of the states which remain untouched ‘expressly’ will continue.

The court proposed a question regarding Article 342A (1) for which the AG replied that there are PSUs in government of India, and there are offices of central government in States. In these cases the central government won’t take lists of state government wrt SEBC.

Central list will apply to Central government public corporations, Central Government offices such as railways in various states. The Centre does not accept blindly the identification of the State governments, stated the AG.

Article 342A exclusively deals with the central government’s competence to identify SEBC for its own purposes wherein States, central government jobs or educational seats are to be filled up, they have to have their own list. In every state, there is a state list for state institutions and educational institutions and state employment. To construe 102nd amendment as excluding States from exercising power because of Art 366(26C) is not justified because there is no attempt to modify Articles 15 (4) and 16 (4) which has declared that power to identify backward classes lies both with State and Centre. Unless you amend Articles 15 (4) and 16 (4) and denude States of the right to identify backward classes, it would not be right to construe Article 342A as denuding the state’s rights, concludes the AG.

Senior Advocate Kapil Sibal informed the bench Sr. Adv. Mukul Rohatgi will make submissions tomorrow as discussed between them.

Maratha-Reservation

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