Maratha Reservation - Supreme Court Constitution Bench Hearing [DAY-1]. LIVE UPDATES

Datar: In 1991, when the Central Government made the controversial office memorandum, even that was 27% because the 50% limit had to be taken into consideration. This submission is sufficient to strike down Sections 3 and 4 of the Maharashtra Act.

Datar: It has to be taken into account that Dr. Ambedkar himself contemplated that reservation had to be confined to minorities. Reservation for majority was never envisaged by the founding fathers. 

Justice Bhat: Don’t just pass over Justice Krishna Iyer. The entire point of NM Thomas was to look over the carry forward rule.

Justice Bhushan: The illustration given by Justice Faizl Ali is broad and runs contrary to Dr. Ambedkar’s speech. They don’t gel.

Justice Bhushan: Weightage has to be given to Dr. Ambedkar’s speech for interpretation of the Constitution.

Datar and Justice Bhushan discuss how NM Thomas presented a peculiar case for promotion.

Bench: How can you say that the window can only be utilised if the Parliament makes changes ? It’s for the States to decide. We are not sure if this argument is correct that it can only be utilised by the Parliament.

Datar: What I meant in the context of Maharashtra, they wanted to say that Marathas are extraordinarily backward, then they should have taken up another route and not this. 

Justice Bhat: One pertinent question at this stage is whether there are any horizontal reservations. Karnataka is 30%, UP is 20%.

Datar: If reservation is completely vertical, then I don’t think there are reservations for women, physically challenged etc.

Datar: It’s a pure vertical reservation. I don’t think they’ve made any horizontal reservations. Our principle submission before Bombay HC was that after Indra Sawhney, the 50% limit could not be crossed.

Datar: It would be putting all logic on its head that Maharashtra is a remote far-flung area. This was not the intention of Indra Sawhney. It was to avoid rigidity. In North-East States, it has increased because it was needed. But, same Can’t be said for Tamil Nadu, Karnataka. 

Datar: There is no distinction between Art. 15(4) and 16(4) for laws enacted after Indra Sawhney judgment. Also, One point that I want to raise is that an interim order cannot be nullified by an Act.

Datar: The quantum of reservation which was prescribed at 16% was reduced by the High Court to 12%. Within 4 days, the State passed an ordinance reducing it to 12-13%. Before this impugned Act, Maharashtra had provided for 52%.

Datar: This 2% excess was to include tribals and nomadic tribes. Though this Act was made in 2001, it was notified in 2004. Please note this. Now please read Section 2(g) which defined backward classes which includes and socially and educationally. 

Datar also uses examples from Maharashtra and Haryana.

Datar: Keeping in mind the political compunctions and Constitutional limitations, Indra Sawhney should not be revisited. It has considered all issues and it is very comprehensive.

Datar now makes submissions on Issue 2 pertaining to whether 50% limit can be exceeded. 

Datar: The Supreme Court has used the remark “self-proclaimed backward classes”. There are newspaper reports on this. In Madras, right before the Model Code of Conduct kicked in for 2020, a reservation was announced. But, it was within 50%.

Datar: The third factor is social dynamics. Our submission is that the limit of 50% is an essential part of equality. This is what Dr. Ambedkar calls the “first principle”. It’s before all, it’s a meta principle. 15(4) and 16(4) further this law of equality.

Justice Bhat: Representation in Article 16(4) is empowerment. But, in 15(4), it’s not just empowerment, it’s access to State facilities. 

Datar: We can look at multiple cases where High Courts have applied 50% and struck down the laws. After Indra Sawhney, the 50% limit has been reiterated by four Constitution Bench judgements, including Nagaraj. Even recent Justice Arun Mishra judgment has touched upon it.

Bench: That is why they want to make this Bench doubt.

Datar: The doubt should precede application. It shouldn’t be the other way around.