Amid spirited arguments by Senior Advocate Mukul Rohatgi that the 50 percent cap set on reservations for backward classes by the Indra Sawhney case requires a re-look, the Supreme Court on Friday briefly mused on how far and how long the scheme of reservations itself should continue.
Since Monday, a Bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and Ravindra Bhat have been holding day-long hearings in the case, which also involves a question over whether the case of Indra Sawhney v. Union of India should be revisited.
With Senior Advocate Rohatgi contending that the Indra Sawhney-imposed 50 percent limit on reservations has undergone a change through subsequent Constitutional amendments and case-laws and that States must now be permitted to re-assess the limit of reservations permissible, the Court asked,
“If there is no 50% or no limit, as you are suggesting, what is the concept of equality? We will ultimately have to deal with it… What is your reflection on that? What will be Article 14?… What about the resultant inequality? How many generations will you continue…?”
Earlier in the hearing, the Bench also queried,
“70 years have passed since independence. States are carrying so many beneficial schemes. can we accept that no development has taken place, that no backward caste has moved forward?”
“Yes, we have moved forward. But it is not that backward classes have gone down from 50 to 20%. we still have starvation deaths in this country…I am not trying to say Indra Sawhney is completely wrong, throw it in the dust bin. I am raising issues – where 30 years have gone by, the law has changed, the population has grown, backwards may also have increased,” Rohatgi answered.
He proceeded to make submissions on the continuation of inequality and backwardness in the country, despite the existing scheme of reservations.
“In 70 years, we have not reached anywhere near our ideal goal. That is why the Constitution was amended“, Rohatgi said, referred to amendments made to Articles 15 and 16 after the Indra Sawhney judgment.
“That all these provisions were added in the Constitution in the last 30-40 years are an indication by parliament. that we have not reached anywhere near the emancipation that we require for the backwards, the have-notes, the SC/ST,” he added.
Rohatgi also pointed out that with a rise in the population, it is also possible that the number of persons in backward classes have also increased.
“The demography has changed from 35 to 135 cores. (If the problems faced by have-nots have not yet been solved) I daresay it is possible for a court to say that definitely, 50 percent cannot be the limit. It was said by Justice Fazal Ali…Now, it is possible that 50 percent ought not to be guiding principle because the last 40 years shows that we fall miserably short of the goal,” he contended.
As such, he asserted that Courts must leave it the State to fix reservations, that the Constitution also leaves it to the States and that the Courts must not put a limit on reservations permissible.
In arguing that the States are in a better position to assess how reservations should be fixed, he also referred to a Uttarakhand High Court judgment, wherein the Court is stated to have observed that reservations cannot be thrust on a State that did not want it owing to there being no backward population.
“That is a State (Uttarakhand) nowhere near 50 percent rule, while most of the States are beyond 50 percent. That (Uttarakhand) is an exception, that they don’t want reservation because there are no backward. In other states, somebody is at 50 percent, somebody is 60 percent”, he explained.
Various counsel who has made submissions so far have differed on their views on whether EWS reservation would breach the 50 percent limit, with some counsel arguing that the EWS quota ought to be viewed as coming within the 50 percent limit.
Rohatgi, however, has asserted that the introduction of reservation for Economically Backward Sections (EWS) by the 103rd Constitutional Amendment is itself an indication that 50 percent limit has been overruled by Parliament.
“If parliament knows it is more than 50 percent and has given 10 percent to a class of economically backward section, no warrant from court to say it cannot go over 50 percent… 103rd amendment is a clear pointer to the overruling of the principle of 50 percent,” Rohatgi said.
He, therefore, urged the Court to re-visit the Indra Sawhney case.
“Therefore, lordships will have to revisit the Indra Sawhney case…Whether Court can impose a limit (on reservations), whether Indra Sawhney case is valid after TMA Pai, after 40 years, after the 103rd amendment? When a number of States have reservations exceeding 50 percent, can we say this is not a burning issue, that this doesn’t require a relook?”
Arguments in the case will continue on Monday when Senior Advocate PS Patwalia is expected to continue his submissions on the merits of the Gaikwad Committee report which favoured the Maratha quota. Following Patwalia, Senior Advocate Kapil Sibal is expected to argue.
To read arguments made so far in the final hearings, click on the links below:
- Day 1 – Senior Advocates Arvind Datarand Shyam Divan
- Day 2 – Senior Advocates Shyam Divan, Gopal Sankaranarayanan, Siddharth Bhatnagar andPradeep Sancheti. To read a summary, click here.
- Day 3 – Senior Advocates Pradeep Sancheti, Rajeev Dhavanand BH Marlappalle
- Day 4– Attorney General KK Venugopal. Notably. the AG has opined that States have independent powers to make reservations, which remain unaffected by the 102nd Constitutional amendment.
- Day 5 – Senior Advocates Mukul Rohatgiand Paramjit Patwalia