A Constitution Bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and Ravindra Bhat will also examine whether or not the 1992 judgment of the Supreme Court in Indra Sawhney v. Union of India, which lays down 50 percent cap on reservation in favour backwards castes and SC/STs, needs to be reconsidered.
The Court, therefore, issued formal notice to all States and posted the case for hearing on March 15, 2021.
The Bench took the decision to hear all the States and not Maharashtra alone after Senior Counsel Mukul Rohtagi, Kapil Sibal and Dr. AM Singhvi contended that the case involves issue which impacts all States since any judgment in the matter could impact the powers of the State to extend reservation to socially and educationally backward classes.
“We are of the view that in view of seminal importance of the issue which has arisen on the validity of 102nd amendment, we issue notice to States,” the Court ordered.
The 102nd Amendment inserted Article 342A to the Constitution giving powers to the Central government to notify any class or community as socially and educationally backward class with respect to any State or Union Territory.
The Court is hearing appeals filed against a judgment of the Bombay High Court which had upheld the validity of the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act.
The SEBC Act originally provided 16 per cent reservation to Maratha community in educational institutions and government jobs. This law was challenged before the Bombay High Court which, in June 2019, upheld the validity of the law but reduced the quota to 12 per cent in admissions to educational institutions and 13 per cent in jobs.
The petitions have challenged the law on the ground that it breaches the 50 per cent reservation threshold prescribed in the 1992 Supreme Court judgment of Indra Sawhney.
The Court had listed the matter for final hearing on Monday but when the matter came up for hearing, Senior Counsel Mukul Rohatgi, who is representing the Maharashtra government insisted on issuing formal notice to all States in the matter.
“The case involves interpretation of Article 342A of the Constitution and will affect every State. I have filed an application that every State should be heard. The issue cannot be decided appropriately without hearing every State,” said Rohatgi.
Senior Counsel Kapil Sibal, appearing for one of the applicants Rajendra Datey Patil who is supporting the law, concurred with Rohatgi.
“The issue involves Constitutional question affecting all States and the Court should not decide this by hearing only Centre and Maharashtra,” the said.
Attorney General KK Venugopal also agreed to the contention advanced by Rohatgi, Sibal and Dr. Singhvi prompting the Court to give opportunity to all States to present their arguments.
Senior Advocates Shyam Divan and Arvind Datar opposed the proposal saying hearing can go ahead without notice to all States, but the Bench thought it fit to bring every State on board.
The following legal issues have, inter alia, been framed by the Court for consideration:
– Whether the 1992 judgment by 9-judge Bench of the Supreme Court in Indra Sawhney needs relook by larger Bench.
– Whether Maratha Reservation is covered by Indra Sawhney?
– Whether 102nd Constitutional Amendment deprives State Legislatures of its power to legislate on SEBCs.
– Whether 102nd amendment affects Federal structure?