'No Extraordinary Circumstance To Exceed 50% Limit' : SC Constitution Bench Hears Lawyers Opposing Maratha Quota On Day 3

A 5- Judge Bench of Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat heard the submissions of Senior Advocates Pradeep Sancheti, Dr. Rajeev Dhavan and BH Marlapalle today.

Pradeep Sancheti – "There is no extraordinary circumstance which allows for reservation above the 50% limit ".

Sancheti continued his submission from the previous day by referring to the 1872 census in order to elucidate the point that Marathas could not claim now, contrary to multiple Committee Reports, that they were socially backward.

"You are saying that 80% were backward in 1872, and this becomes an extraordinary circumstance. Can this be treated as such a circumstance under Indira Sawhney?", stated Sancheti.

He further underlined the current progress of Marathas and submitted that in order for a class to be declared as socially and educationally backward, the economic criteria had to be taken into account.

"Reservation is not a fundamental right; it is only an enabling provision. Farmer suicides etc. can be in hundreds or thousands. But these are not peculiar to Marathas and have been happening across the country".

Sancheti then highlighted the issues in the Justice MG Gaikward Report which had submitted that 80-85% of the Maratha population is backward and as such including then within the 50% ceiling would be injustice to them and would upset existing reservations.

"The Commission report proceeds on the basis that previous reports are unfounded and do not have the data to back their assertions and that's why they have been unreasonably excluded".

It was then submitted by Sancheti that majority of the posts had been occupied by the Marathas and that the argument pertaining to historical injustice was flawed. He referred to the judgment of Ram Singh regarding reservation of Jats, which had been consequently rejected by the Supreme Court on the grounds that outdated statistics could not be considered for inclusion as they would lead to retrograde governance.

He further highlighted that the sample size that had been considered for the assertions made in the Gaikwad report was too small and therefore, the data analysis was patently flawed.

"950 persons out of 100,000 persons were consulted. This cannot be allowed. You cannot go to select remote areas and pick select people, and then say, 'look, they are backward'. In Nagpur, they interviewed 153 out of 50 lakhs. In Konkan region, they interviewed only 73 people. You cannot do that and then say that previous reports should be discard as they have no data and they are flawed", asserted Sancheti.

Sancheti also submitted women employed in physical labour from rural areas were mostly consulted – "One criterion for being considered socially backward is whether other classes/castes consider you to be so. If you check the survey, more than half of the people surveyed are Marathas themselves. In your survey, everybody is backward, because your pocked of survey is as such. Almost 40% of MPs and MLAs are from this community. Even the Bombay HC held that there was material to indicate that Marathas were socially and politically dominant".

He concluded on the note that if the Court was persuaded to hold Marathas backward, then at the very highest, it would be a case of inclusion in OBC within 50%, and not a acase for exceeding 50%.

Dr. Rajeev Dhavan – State Still Has Immense Power To Implement Provisions Related to Reservation Within The States

Dr. Dhavan commenced his submissions by informing the Bench that reservations when made by the State were propelled because of social pressure.

"When we see why reservation are made by States, it is because of social pressure and almost as a consequence of telling the State that if you don't do it, we will rebel. This was done by the Jat community. Meena community also wants to be included in the Scheduled Caste", averred Dr. Dhavan.

Dhavan then emphasized the importance of social dynamics and asked whether one could say that there had been no improvement after 70 years and in fact, there had been regression.

Shedding a light on the aspects of reservation, Dhavan submitted to the Bench that while the first aspect, i.e. identification, was vested in the Parliament, the most important aspect, i.e. implementation, was still in the hands of the State, and the third was rigorous judicial scrutiny.

"Part of the quarrel for reservation is that the States are saying that the power for identification has been taken away from them and given to the National Commission. But, there is a huge power of implementation. Percentages, creamy layer is left to the States. We need to see whether a balance is maintained in the federal structure. Part of identification merges into implementation."

Dhavan proceeded to highlight that reservation had three aspects – discrimination, disadvantage and disempowerment. Further, the 50% limit had three components – first, there was no obligation to provide for reservation and second, it was a matter of principle. Therefore, in order to cross 50%, there had to exist acute and prominent reasons.

He then submitted that there was not a single judgment that had doubted Indra Sawhney and there was no fixed meaning given to "changed social dynamics".

"This is the difference between 'been' and 'becoming'. Are we becoming more regressive? Does changed social dynamics mean Jats breaking windows. I'm not saying that the Court cannot go into political questions, that was done in SP Gupta case. Indira Sawhney is absolutely clear that you can make an exception when there is a compelling need. What is the reason here?"

Dhavan continued to emphasise the need for "exceptional citcumstances" in order to exceed the 50% limit set under Indra Sawhney.

"1) When they seek 75% or 80% of reservation, it needs to be kept in mind that there is no obligation at all. And I've said this before, political obligation is not synonymous with constitutional obligation. 2) The standard for reservation above the 50% limit is extremely high. 3) In certain areas, there can be no reservation. Did Maharashtra take this into account?", submitted Dhavan.

On being asked by Justice Rao about his views on the 102^nd Amendment, Dhavan responded that he believed both the 102^nd and 103d Amendments were valid because they furthered the principle of quality.

"If the validity is to be questioned, then one can say that it is an equality enhancing provision. That is what Article 15(6) does as well. The dilemma I face is not because of 16(4)(a) or (b) because that has already been settled by Nagaraj. Now come to 16(6) and here I have the same argument that I have made for 15(6). It is an equality enhancing provision and has to come within 50%", conveyed Dhavan.

In response to how he would read this within the existing limit of reservation, Dhavan responded, "This I interpret in the way that all the other vertical reservations will remain. When it says 'in addition', it means in addition to the reservation that have already been stipulated in 16(4)".

Dhavan then contended that the sad reality of reservation was that amelioration did not take place.

"You come up with a quota and get the votes, but there are no amelioration schemes which are put in place. Where is the question of quota? None. I tried to make this distinction between Article 15 (ameliorative in nature) and 16 (which dealt with quotas), and it did not work in Indra Sawhney. 15(4) has an ameliorative function. When we look at 338, 338A and 338B, they are connected. That is what Amartya Sen says in Idea of Justice – Everybody must be able to compete in the same way", submitted Dhavan.

On the issue of Central list being made by the Parliament, Dhavan contended that the power was entrusted to the Parliament which was a fundamental structure change.

"Under Article 342A, the 'Central List' can be a consolidated list that may be divided into state, region-wise. Someone may be socially and economically backward in one State, but not in another State. Nothing prohibits the Parliament from making a consolidated list and applying it State-wise. This is where 'sharing power' comes up. This was Justice Bhat's query as well".

Dhavan once again then averred the importance of the State's power to implement the reservations. He also underlined how Dr. Ambedkar, despite making the individual the basis of the Constitution, had also fought for groups, and that ultimately the concern was equality.

Questioning the need to refer Indra Sawhney to a larger Bench, Dhavan brought to the fore the issue of how the Respondents could simply challenge the 102^nd Amendment and not do so indirectly without giving a reason for the reference.

Dhavan concluded his submissions by highlighting that most of the demands made for reservations were due to political upsurge, but that did not mean that political cases were not justiciable.

"The secret of India's success with reservations, apart from political factors that have armed it, is that a balance must be maintained. If you go beyond it, then something is wrong. These provisions for reservation cannot be interpreted in isolation", concluded Dhavan.

BH Marlapalle – External Aids Not Required As Constitution Has Now Defined "Backward Classes"

Senior Advocate BH Marlapalle also made submissions on why external aids were no longer required to interpret the Articles in the Constitutions as had been inserted by the 102^nd Amendment. He raised the issue that Indra Sawhney allowed for external aids as "backward classes" had not been defined. However, the same had been done now.

Marlapalle also highlighted the point that if the question of Marathas and Kunbis being on par was to be answered then no legislation was required for Marathas as Kunbis were already a part of the OBC list.

Marlapalle will resume his submissions tomorrow, followed by the Attorney-General.

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.

On September 9, 2020, a three-judge Bench of the Supreme Court referred the cases to a larger Bench to determine the issue whether State Government has the power to declare a class as Socially and Economically Backward after the Constitution (102nd) amendment.

Two weeks ago, the Constitution Bench indicated that it might examine the need to revisit the Indira Sawhney judgment's 50% ceiling on reservation and issued notices to all State Governments.