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

Datar: As far as 50% is concerned, it has been accepted by everyone since 1991 and has been applied for 15(4), 16(4). It has not been questioned unlike other cases. Only question now is whether it should be referred to 11-Judges.

Datar: A very high threshold is required before reference. This was something which even the 9-Judge Bench had deliberated upon in Indra Sawhney.

Datar: Taking a cue from Justice Bhat, when NM Thomas was reconsidered, it was 7, and Balaji was 5. That was then referred to a 9-Judge Bench. 

Datar: 8 out of 9 judges in that matter held that the 50% rule applied. 8 out of 9 said that creamy layer must be there. Majority and minority have given a number of judgements on all the issues. But, 50% should not be crossed.

Datar: The argument was that because of 226, all writs would be filed in Delhi and no other Court would have jurisdiction. My submission is that if 50% found to be inconvenient, there can be a carry forward. But, it cannot be crossed. 

Datar: My proposition is that there’s not a single judgement post Indra Sawhney that I can locate about the revisiting of this. In Khajoor Singh, a Bench of 7 Judges was constituted to consider the territorial jurisdiction of High Courts as per Art. 226. 

Justice Bhat: Those days we had the fundamental right to property. The Court was actually addressing for the first time about the Constitutionality of amendments post Golaknath. 

Datar: In RC Cooper, I talked to Palkhivala. There was no discernible reason given for the reference. These were unique cases that were so important that the entire Court sat. 

Datar: In Golaknath, there was a question as to what was the meaning of “law” in terms of powers under Article 368. Between 1966-67, there were only 11 Judges. So, virtually the full court sat. 

Datar: Supreme Court, for judgements, has only sat 5 times. So, we tried to find why it sat these many times. In each case, the reason to refer to 11 Judges was a serious doubt.

Datar: Reason given for reference is that Indra Sawhney refers to Art. 16(4) and not 15(4). Our submission is going to be that reference to 11-Judges is not required on this point of 50%. 

Datar states that he will first begin with Issue 2.

Datar: Question was raised whether Indra Sawhney needs to be revisited. And our submission is that there’s not a single Judgement which doubts the competence of Indra Sawhney.