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

Datar: Yes, if it applies to the larger group, then it has to apply to the smaller subset equally as well. Now, wherever Parliament wanted to overcome Indra Sawhney, they made four Constitutional amendments. 

Datar: The fact that they haven’t touched Indra Sawhney in 30-40 years, is a ground that Indra Sawhney should not be revisited. The second ground is that, our research has shown that Sawhney has not been doubted in any judgement.

Bench: Except NM Thomas.

Datar: That is before.

Datar: It is also to be noted that 15(4) was added right after the 1st Amendment.

Justice Bhat: Structure of 15(4) is like 16(3).

Datar is now reading out a judgement.

Datar: The limit which has been placed on 16(4), has to be applied to 15(4) as well. If socially, education is “x”, then 15(4) and 16(4) is “x+y”.

Bench: So, socially, educationally backward is a subset of backward classes. 

Datar: Both 15(4) and 16(4) are in the context of what we call affirmative action where the State can make special concessions for socially, economically backward classes. 

Datar: Immediately within a year of this judgment, Parliament understood that this would apply to admission in colleges also and that therefore, it would extend to 15(4). This is my response to Justice Rao. Now, kindly see the difference between 15(4) and 16(4).

Datar: This is linked to 29(2) which states that no person shall be denied admission to any State-administered educational institution. 

Datar: Indra Sawhney is not to restricted to 16(4) of Constitution alone, but to reservation as a whole. Otherwise it would be paradoxical to say that it will be 50% for public posts, but for education, it would be 60-70%. Later judgements also do not question this.

Datar: 15(4) is education and 16(4) is employment. Nowhere has it been argued that Indra Sawhney should not be applicable in 15(4) as well. 

Datar: From Ambedkar to NM Thomas, Indra Sawhney considers it all before arriving at the 50% limit.

Justice Rao: Indra Sawhney only deals with 16(4). Please deal with this point as well. 

Datar: 103rd Amendment has to be changed, then it can’t be done by this Bench. It has to be done by the Parliament. How did this come ? We have to go back to Dr. Ambedkar’s speech on 13th Nov, 1948.

 Datar: The first principle of Article 14 is placed at the apex. But, you can achieve equality by giving certain opportunities. That’s what Dr. Ambedkar propounds in his speech. Till NM Thomas, no one says that 50% can be crossed. Indra Sawhney considers everything.

Datar: 50% was made for Articles 15(4) and 16(4). Now when it comes to the 103rd Amendment...

Bench is discussing. 

Datar: Indra Sawhney was delivered after so much of deliberation and discussion, that I humbly submit that there is no need to revisit it.

Datar: Why I mentioned creamy lawyer was because in Jarnail Singh, the Court noted that there was a 8 out of 9 concurrence. I submit that it is similar for the 50% principle.

Datar: The Parliament for 30 years has left 50% alone, and whenever it has to circumvented, legislative amendments have been made.

Bench: This 50% has been vitiated in many cases. And that’s why they are seeking for a reference. How do you respond to that.