Maratha Reservation: Supreme Court Constitution Bench Hearing- Live Updates [Day-2]

Bench has re-assembled.

Sr. Adv. Gopal Sankaranarayanan has resumed his arguments. He submits that the State of Maharashtra relied upon Indra Sawhney before the Bombay HC & has succeeded. The issue therefore is whether HC’s interpretation is correct or not.

Bench has risen for lunch. Matter will resume at 2PM. 

Sankaranarayanan: Usage of the word “central” comes from an attempt to emphasise and circumvent directions in Indra Sawhney. Let me now read Art. 338B. 

Sankaranarayanan: The previous two clauses in 341 and 342 have used the same phraseology.

Bench: The entire case pertains to how to interpret "Central List".

Sankaranarayanan: 341 and 342 refer specifically to the President. Due to same phrases, there cannot be two lists.

Sankaranarayanan: The issue before this Court is whether the State of Maharashtra has the power to include a community which previously was not present in the List. None of us are arguing that there shouldn’t be any list at all.

Sankaranarayanan now refers to the Constitutional amendments, starting with Article 366. 

Justice Bhat: If the argument being pursued by you states that it is only the Centre, does it mean that we start with a clean slate ? There is no saving provision according to you, like the SC/ST order. It will throw the entire thing into a turmoil.

Sankaranarayanan: I think it will be relevant for me to take you through the Repeal Act.

Justice Bhushan: The Repeal Act has not effect on the State Lists.

Sankaranarayanan: If the Constitution doesn’t have a Saving clause, then this will come up. 

Sankaranarayanan: After the Constitutional amendment, two things happened in Maharashtra. They inserted a community by way of 342A. Your Lordships will have to assess that. I will demonstrate how 342A needs to be read in conjunction with 338B and 338.

Sankaranarayanan continues reading out a careful analysis of the Constitutional amendments vis-à-vis Indra Sawhney.

 Sankaranarayanan: There are several more dissent notes along the same lines stating that there seems to be an exclusion as far as the State is concerned. These are extensive.

Sankaranarayanan: The first change that the 102nd Amendment makes is deletion. I will now read out the chronology of events leading up to this Amendment as well as the Selection Committee Report. 

Sankaranarayanan: There could be complaints of over inclusion and under inclusion. And what can the Commission do when the complaints come in ? They can give advice which is binding.