For How Many Generations Reservations Will Continue? Supreme Court Asks In Maratha Quota Case[Day 5]

While hearing the Maratha quota case, a constitution bench of the Supreme Court on Friday asked for how many generations would reservations in jobs and education continue. The bench also sought to know if the removal of 50% limit on reservation will affect the right to equality under Article 14 of the Constitution and would lead to a "resultant inequality".

The Constitution Bench of the Supreme Court was holding the 5th day of hearing on the petitions challenging the Constitutionality of the Maharashtra State Reservation For Socially and Educationally Backward Classes (SEBC) Act which provides for a quota to Marathas in jobs and education.

A 5- Judge Bench of Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat heard the submissions put forward Senior Advocates Mukul Rohatgi and Paramjit Patwalia, who were appearing on behalf of the Respondents.

On Friday, Rohatgi commenced his arguments by informing the Bench that he would delineate various reasons that would warrant for a relook of the 9-Judge Bench judgement in Indra Sawhney, including the fact that it was only meant to cover Article 16(4) and not Article 15(4).

"There are several reasons as to why it warrants a relook. Mandal himself said that it needed to be reconsidered after 20 years. There are also different voices in the judgement. It's not 8:1 majority. The group was divided into 4:3:2, and everyone had a different view on whether the 50% limit could be breached or not".

Rohatgi raised the issue as to how splinter groups should not exist and that there could only be a majority group and a minority group.

"This problem started a long time back, and not in Indra Sawhney. In Kesavananda Bharati, four Judges refused to sign because they were not consulted. This is referred to in Seervai's book. And this is the issue which comes up – 5:4 Bench reversing a 7-Judge Bench judgement".

Rohatgi then argued that the interpretation of Articles 15 and 16 had to be done in a holistic manner, by considering the mandate of the Directive Principles of State Policy (DPSP), and had Indra Sahwney done so, then the judgement would have been different. He submitted that Article 16 was an enabling provision, with the only limitations being public employment and adequate representation. Further, the sweep of Article 15 was wider than Article 16.

"Amendments to 15(5) and 16(4)(a) and (b) are all post-Indra Sawhney. The judgement had struck down the impugned OM on the grounds that there was no provision in the Constitution for economically weaker sections and that 15(4) and 16(4) were not enough to bring EWS within the fray. 16 may be narrower than 15, but it is sweepingly wider when it comes to backward classes. But, these provisions don't provide a percentage. What was struck down was resurrected by the Parliament".

Rohatgi submitted that there was a need to consider Articles 37, 38, 39 and 36 while making a law for reservation, and that the State had the power to strike a balance. He stated that as the judgement in Balaji held that Article 16(4) was not an exception to Article 16(1), then the basis of 50% limit had been debunked, therefore, 50% cannot remain the rule.

"After the Constitutional amendment, the reservation across the nation has broadly crossed 70%. What was struck down has been resurrected. Whether Indra Sahwney will still rule when there is a Constitutional amendment is a very big question. Look at Dr. Ambedkar's speech. What the Constitution makers have said will never be frozen in time".

It was then averred by the Senior Advocate that the premise of the Mandal Commission was the Census of 1931 and as the population had grown over the past century, the intrinsic material in the report could not hold water. Further, as the Indra Sawhney judgment did not consider the DPSP, it needed a relook.

To this the Bench responded, "Mr. Rohatgi, the purpose of review was that those who have come out from backwardness must be eliminated. 70 years have passed since Independence. So many beneficial schemes are being carried by States. Can we accept that no development has taken place?"

Rohatgi responded that the Constitution had not specified the 50% limit anywhere and that it had merely been read into it by the Courts. To this, Justice Bhushan stated that it was the Constitutional Bench which interpreted Constitutional principles, which is why it was a living document.

It was additionally submitted that relooking one point in Indra Sawhney and not others would make the directions in the judgement redundant.

"If it must go, then the whole thing must go. There must a be a holistic relook. If the State's power of identifying socially and educationally backward classes is taken away, a part of Indra Sawhney also gets diluted since it directed the constitution of State Commissions."

The Court then enquired, "If there is no 50% limit, what is the concept of Article 14 then? What would happen to the resultant inequality and for how many generations will this continue?"

Rohatgi responded that in 70 years, the country had not reached close to its ideal goal and that was the reason for the Constitutional amendments.

"All these provisions being added to the Constitution are an indication that we have not reached anywhere near emancipation that we require. 50% ought not to be the guiding factor. Despite the mandate, we are yet to achieve advancement. All judgements prior to Indra Sawhney have not laid down a uniform view. It must be left to the State to fix reservations. 103^rd Amendment is a clear pointer for the overruling of the 50% principle".

Referring to how Constitutional amendments which brought in Article 16(4)(a) and (b) undoes the principle laid down under Indra Sawhney, Rohatgi submitted that a relook was required.

"EWS are those specified by the State on the basis of income and other economic issues. This cannot be done by the Parliament or a schedule to the Constitution. Indra Sawhney has been effectively done. It needs a relook because its entire basis has completely gone".

Rohatgi then contended that when testing the validity of a restriction on the touchstone of fundamental rights, one also had to test it on the mandate of DPSPs.

"There exist several burning issues of reservation today. How can we say that we are bound by this? By virtue of 10% reservation for the economically weaker, the findings in Indra Sawhney that backwardness cannot be adjudged by income or economic criteria alone are gone, and therefore it requires a relook holistically", concluded Rohatgi.

Senior Advocate Paramjit Patwalia then began his submissions on the aspect of the scope of judicial review of the Gaikwad Commission report. He argued that the observations that had been made against the report were unfair and had gone great injustice.

"The Commission did a detailed study, they referred to history, previous Commission reports. To say all these things about members of the Commission is very uncharitable. There were professors, experts, academics, social scientists. There was no challenge to the constitution of the Commission at any stage."

Patwalia then submitted to the Bench that he would endeavor to show the extraordinary circumstances which warranted for the reservation to be extended to Marathas beyond the 50% limit.

"Fitting 30% Marathas into existing 27% reservation would mean there is a 0.12% job opportunity for 1 person; a job for which 100 people are fighting. This is just a mirage, not an opportunity".

It was also contended that the Bombay High Court had upheld the report and as the Chairman of the Commission was a former High Court Judge, he was aware of the judgements and prevailing circumstances.

"To say that this is a self-serving report is extremely uncharitable. The learned Judge has done an outstanding job. Everything has been considered. A detailed examination was done".

In response to the Court's query pertaining to a small sample size and lack of inclusion of urban population, Patwalia submitted that the latter assertion was incorrect because municipal corporations were selected for the survey from urban areas. Further, public hearings were conducted on the subject of reservation and expert inputs had been invited.

Patwalia will resume his arguments on Monday.

BACKGROUND

The pleas before the Constitution Bench challenges the Bombay High Court judgment passed in June 2019, and submits that the Socially and Educationally Backward Classes (SEBC) Act, 2018, which provides for 12% and 13% quota to the Maratha community in education and jobs respectively, violated the principles laid in the case of Indira Sawhney v. Union of India (1992) as per which the Apex Court capped the reservation limit at 50%.

The Bombay High Court, while upholding the Maratha quota, held that 16% reservation is not justifiable and ruled that reservation should not exceed 12% in employment and 13% in education as recommended by the State Backward Commission.

Reports of previous hearings :

Maratha Quota Case : Indira Sawhney Decision Delivered After Much Discussion; No Need To Revisit, Datar Argues In Supreme Court