Maratha Reservation: Supreme Court Issues Notice To All States, Will Consider Whether Mandal Commission Judgment To Be Re-looked

Noting the submission of the Maharashtra government that the principle question that has arisen is the interpretation of the 102nd Constitutional Amendment and that it will impact the legislative competence of all States, the Supreme court on Monday issued notice to all the states in the Maratha reservation matter, adjourning the hearing to March 15.

A five-judge bench headed by Justice Ashok Bhushan observed that AG K. K. Venugopal is also of the opinion that the states be heard. The bench took the view that the issues which arise for its consideration are whether the Indra Sawhney judgments (Mandal Commission Case)  requires a relook by a larger Bench, whether the said decision covers the issue of the Maratha Reservation, whether the 102nd Amendment affects the federal structure, depriving the states of their power in respect of the SEBCs.

Senior advocate Mukul Rohatgi, appearing for the state of Maharashtra, sought to make some preliminary submissions on behalf of the state- "As per the order of reference of September 9, 2020, the singular question framed under Article 145 as regard the ambit and the scope of article 342A. It was the case of the petitioners that Article 342A has been interpreted in their favour by the High Court, contrary to the decision. The rights of all the states in the nation with respect to reservation under Articles 15 and 16 stand denuded! The Backward Classes Commission of the states will become redundant otherwise"

The bench assured Mr Rohatgi that it shall frame one question in this behalf.

"I am sure Your Lordships will frame it. But the point in my application is that every state is affected by the interpretation of Article 342A. Every state is denuded of its legislative competence under Articles 15 and 16. So every state must be heard", pressed Mr Rohatgi

"We don't have to hear every state on this. We have to comprehend and interpret the Article. You assist us on this", observed Justice Bhushan.

"But this has been a practice of Your Lordships wherever states are concerned. I have listed some 15-16 cases, where there were issues of much lesser importance and the court had added the states as party. This matter involves a breach of the federal status. It cannot be heard appropriately without the presence of all the states in the nation. It is not a simple matter or a trivial issue. It would be completely inappropriate to proceed with the hearing without the existence of all the states before the court", urged Mr Rohatgi.

"We know it is a matter of importance. So we will clarify that if any state wishes to intervene, we will hear it. If any state wishes to add anything to what has been submitted by you, we shall permit them", noted Justice Bhushan.

"The states can't come in a day or two days or three days. They have to be called. They have to seek instructions. They have to understand the position as it prevails...You may seek the AG's opinion in this behalf", argued Mr Rohatgi.

To supplement his arguments, senior advocate Kapil Sibal, for one of the applicants Rajendra Datey Patil, advanced that this is a "very, very serious issue" – "In fact there are 16 states in the country which are affected by this at present. If Your Lordships say that no state can set up its reservation commission and it is only the commission of the Centre which shall decide and that their power of reservation has been taken away by the 102nd amendment…If Your Lordships leave it to the states to intervene if they wish to, that would be inconsistent to the practice that has prevailed in this court since 1950. This interpretation of Article 338B and 342A is a substantial question of law. The states are as much involved as the Centre. They have a vital vested interest. It affects the entire federal structure. Your Lordships must issue notice to them. Otherwise, every question can be decided by this court without the states, because Your Lordships have the power"

Senior advocate P. S. Patwalia, also for the state of Maharashtra, pointed out that though the reference is with respect to the 102nd amendment, the side of the petitioners will raise the issue of 50% ceiling on reservation –"there are many other states which have similar Acts, which are been challenged in different forums, including the High Court as well as this court. Each state has a stake. There are 27 states at present which have more than 50% reservation. The states should be given notice!"

In his turn, AG K. K. Venugopal advanced, "As far as the state of Maharashtra is concerned, there are two major issues – there is the issue of the 50% ceiling. Your Lordships have by a majority of 6:3 (in Indira Sawney) agreed that other than in exceptional cases, the reservation cannot exceed 50%. Here, it is 72%, after the reservation for the economically weaker sections is added. So the bar comes into operation. So far as the Maharashtra government is concerned, they will have to satisfy the question of exceptional circumstances"

"As regards Article 338B, as on August 14, 2018, the mandate of the National Commission was to identify the backward classes for the country. Article 342A was amended on August 14, 2018, empowering the President, in consultation with the Governor, to identify and notify for every state and union territory the socially and educationally backward classes. So this task has been out of the purview and out of the jurisdiction of the state governments since 2018", he continued.

When the bench sought his opinion on whether notice should be issued to the states in the matter, the AG responded, "Articles 338B and 342A impact the power of each state. As I understand, no state can, after 2018, grant reservation to any classes. So Maharashtra could not have declared a class as a backward class. Your Lordships may have notice served on the standing counsel of the states and they may file a response if they wish to. Your Lordships need not publish a notice in the newspapers"

Senior advocate Arvind Datar, for the petitioners opposing the reservation, pressed that there is no need for postponing the hearing – "As far as the 50% issue is concerned, the matter stands concluded by Indra Sawhney subject to exceptions. So far as the 102nd amendment is concerned, we did not succeed in the High Court. But there is no need to postpone the hearing. Your Lordships may keep the 102nd amendment issue open for later. If the SEBC Act is to be struck down, it would be the end of the matter. Whether OBC reservation is a central subject or it is a centre-state subject, as after 2018, can be seen then. There is no need to issue notice to the states"

Mr. Datar also pressed that none of the states have come before the court except Haryana and Chhattisgarh and that the counsel in this matter have been preparing for months now and so, the hearing must commence.

Senior advocate V Giri drew the attention of the bench to a substantive writ petition challenging a similar Act in the state of Haryana, which had been heard by a bench headed by Justice AM Khanwilkar and the bench had been inclined to refer the same to this Constitution bench. Mr Giri pointed out that the writ petition was supposed to be listed before Justice Khanwilkar bench on Friday for directions for reference to the Constitution bench. But as the bench was not sitting, no order came to be passed. He prayed that the state of Haryana has been served and that matter may also be listed here. "Let the bench consider it. If an order is passed, we will see", said Justice Bhushan. "That bench gave us the liberty to move Your Lordships. Both the questions arise here also", urged Mr Giri.

Senior advocate Preteesh Kapoor, appearing for the state of Chhattisgarh, also advanced that the issue of the 102nd amendment was the main question referred and the hearing cannot proceed de hors this issue.

Senior advocate Shyam Diwan, also for the petitioners, advanced, "In pursuance of Your Lordships order of February 5, we have come prepared to make submissions. As regards whether it should go higher, lower or whether it should be referred to a larger bench, Your Lordships had given time slots to all of us and these issues can be argued in the respective time slots. We are on legislative competence right now. Issues concerning a constitutional provision or a change in the Constitution are routinely heard before this court. The fact that judgement impacts the entire country does not mean the court needs to hear every state. When the legislative competence is adjudged for its impact on the federal structure and a local or state legislation is challenged, there is no need to issue notice to all the states. Besides, since February 5, if any state wanted to come and assist, they would have done so. The reference order is also of a much earlier date and people know about it. Please allow the hearing to proceed. If Your Lordships feel during the course of the arguments that there are certain complexities or you wish to take a different course of action, by all means. But please let us proceed"

Senior advocate Gopal Sankaranarayanan, also for the petitioners, advanced, "Here, the 102nd amendment is not challenged. We are only on the interpretation. The issue of the federal impact is to be considered if any state says that the amendment is in violation. As far as the states are concerned, no notice may be issued because none of them have challenged Article 102. With regard to the issue of the reference of the matter to 11 judges, I apprehend that this argument, if taken up later, will derail the hearing. As an officer of the court, without taking any sides, I must submit that there are four different issues, all pertaining to reservation, pending before this court, three of which have been referred to constitution benches. They all have linkages with each other but not all are listed here. One is regarding the 103rd amendment, by which the EWS have been granted 10% reservation. It has a close and proximate link to the arguments which are made here. Then, there is the issue of the sub-classification of groups which has been referred to a seven judge bench. These must all be heard together..."

Reliance was placed on the Property Owners Case, where a reference has been pending for over 20 years. In the said case, the constitutional validity of the amendment to the Maharashtra Housing and Area Development Act, 1976 was challenged. The said amendment, inter alia, contained a declaration that the Act is for giving effect to the policy of the State towards securing the principles specified in clause (b) of Article 39. In view of Article 31-C, the contention of the State was that the validity of any part of the statute on the ground that it violated Article 14 or 19, was not permissible. In 1996, a three-judge bench had referred the matter to "a larger Bench of not less than five Judges for hearing and deciding these matters". Subsequently, in 2001, a five-judge bench, after hearing the counsel, was of the opinion that the views expressed in the Sanjeev Coke case require reconsideration. Keeping in view the importance of the point in issue, namely, the interpretation of Article 39(b), the bench had deemed it appropriate if these cases are heard by a larger Bench of not less than seven Judges. Mr. Sankaranarayanan pointed out that this reference has been pending for 21 years.

"There is no need for any challenge. The only question referred is the interpretation of Article 342A. The effect is to nullify the rights of the states under Articles 15 and 16. It affects the federal structure of the country. It cannot be the practice of this court to say that the states may come or may not come. In lesser matters such as community kitchen, setting of special courts for the MLAs, TV cameras in police stations, the regularisation of illegal constructions etc, Your Lordships have issued notice to the states. This is a fundamental issue of great importance. The issue of 50% is to be argued in the court of appeals, when we argue for reference to a larger bench. If Article 342A is decided against the states, why would we go into 50%. Then the basis of reservation is knocked down...if the matter is adjourned because of this, the state doesn't gain any advantage. We are in fact suffering a stay! The AG has taken two positions-but he agrees that the notice should go to the states, though on merits he is against us", responded Mr. Rohatgi.

"Any bifurcation of issues will be difficult because these issues are highly interconnected. There is no Chinese wall", countered Senior Advocate A. M. Singhvi, for the applicants.

"We understand that the states have to be issued notice, so that nobody is prejudiced. We will issue notice on the standing counsel of the states and permit them to file their response. We will change the schedule of the hearing and adjourned the matter, beginning from March 15. This way the states will have time to respond if they wish to. We will issue notice today", conceded Justice Bhushan.

"First they wanted to issue a notice to the AG. Now they are asking for notice to the states. For some reason they keep delaying the hearing. Let there be no further adjournments for any cause on March 15", pleaded Mr Datar.

It may be noted that Mr. Rohatgi had last year requested that the matter is too voluminous to be heard via virtual hearing and had prayed that it be kept for after a vaccine comes into existence so that it can be heard in physical form. On Monday, when the bench asked if in view of the commencement of hybrid hearings from the next week, Mr. Rohatgi wanted the matter to be heard in physically, Mr. Rohatgi insisted on a virtual hearing, submitting that the number of COVID cases are on the rise again.

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