A Constitution Bench of the Supreme Court today heard the first round of arguments in relation to whether the 1992 ruling in Indra Sawhney v. Union of India, which lays down 50% cap on reservations in favour of backward castes and SC/STs, should be reconsidered (Jaishri Laxmanrao Patil v. Chief Minister).
Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and Ravindra Bhat today heard arguments by Senior Advocate Arvind Datar, who appears for one of the petitioners challenging the validity of Maratha reservations.
After Senior Advocate Datar concluded his submissions today, Senior Advocate Divan commenced his arguments, which will continue tomorrow before the Constitution Bench.
Highlights of Datar’s submissions
No reason to revisit Indra Sawhney judgment
Given that the Indra Sawhney judgment was rendered after comprehensive deliberation and since no judgment since has doubted its correctness, there is no need to revisit the 9-Judge Bench ruling by referring it to a 11-judge Bench, Datar argued.
“We could not locate any judgment which referred to any inconsistency that requires a revisit of Indra Sawhney”, Datar submitted.
He added that in the past, matters were taken up by 11-Judge Benches only when serious doubts were expressed over correctness of judgments. This is not the case with the Indra Sawhney judgment, he argued.
Datar went on to recount that different States have introduced reservations on political considerations, shortly before the Model Code of Conduct (MCC) kicked in. Reference was made to the 10.5 percent reservation made for Vanniya Kula Kshatriyar in Tamil Nadu last month during the ongoing election season, inclusion of Nadar Christians in OBC category by Kerala amid 2014 elections, Madhya Pradesh extending OBC quota from 14 to 27 percent a day before MCC kicked in during 2019 elections, among other examples.
In this backdrop, he argued that, aside from constitutional limitations, Indra Sawhney should not be revisited also considering the political underpinnings of extending reservations.
States cannot cross ‘Lakshman Rekha’ of 50 percent in making reservations.
Datar emphasised that the Indra Sawhney case has laid down that as a general rule, reservations for socially and economically backward classes cannot cross a 50 percent limit. Subsequent rulings have upheld this judgment.
“This (50% limit) is the Lakshman Rekha that has to be followed by every State legislature in making reservations to public posts and education,” argued Datar.
50 percent rule applies to both Article 16(4) and Article 15(4) of the Constitution
Datar added that the 50 percent rule laid down in Indra Sawhney’s case is not only applicable to Article 16 (4) of the Constitution (dealing with reservations in public employment for ‘backward classes’) but that it is also application to Article 15(4) (dealing with any law for reservations for backward classes, Scheduled Castes, Scheduled Tribes in matters of education and employment).
Article 16(4), which covers backward classes, is broader than Article 15 (4), which covers socially and economically backward classes. As such, if the 50 percent rule applies to Article 16(4), it would also apply to the smaller substratum of Article 15(4).
He contended that the 50 percent limit on reservations is a constitutional limitation that has been recognised by the Supreme Court when it comes to reservations.
“Wherever there is an affirmative action, the overall limit of 50% applies,” he said.
He added that this limitation is rooted in the right to equality under Article 14, which has a brooding omnipresence and is applicable everywhere.
“… it would be paradoxical to say that it will be 50% for public posts, but for education, it would be 60-70%,” Datar added, while responding to a Court query.
Dr. Ambedkar’s “First Principle” would be violated in implementing Maratha Reservations beyond 50 percent
Datar recalled Dr. BR Ambedkar’s “first principle” that if a government reserved 70 percent of the positions in government jobs, leaving only 30 percent for the general population, then this would violate the principle “that there shall be equality of opportunity.”
As such, Dr. Ambedkar had said that the seats to be reserved must be confined to a minority of seats, Datar submitted. He argued further that the right to equality is a meta right, a right above all rights.
Articles 15 and 16 are intended to promote equality, he added. In this regard, he also argued that Article 16(4) (reservations in public employment) is not an exception to Article 16(1) (dealing with equality in public employment), but rather that it was meant to achieve Article 16(1).
Marathas not a backward community
Datar argued that Maharashtra cannot claim that the Marathas are a backward community given that –
- Various commissions, including the Mandal Commission in 1980, had concluded that Marathas are not backward.
- A Full Bench of the National Commission for Backward Classes (NCBC) has ruled that Marathas are not synonymous with the Kunbi community, and that Marathas are actually a forward community. Datar pointed out that, in fact, the NCBC found that the Maratha community was a “socially advanced and prestigious community.”
- Whereas the Indra Sawhneyjudgment laid down that there may be exceptions to the 50 percent limit for reservations, this limit can only be breached in extraordinary situations, where populations cut off from mainstream society in far-flung areas require it. Relatively prosperous States such as Maharashtra, Tamil Nadu and Karnataka cannot claim to fall under such “extraordinary” categories.
“It would be completely unacceptable to state that Maharashtra is a “far-flung remote area” and has some special needs. You would be putting all logic on its head… That was not the intention of Indra Sawhney… If Maharashtra wanted to say that they are extraordinarily backward, then they should have taken the Constitutional amendment route,” Datar argued.
Maharashtra’s SEBC Act should be struck down as unconstitutional.
In view of the above submissions, Datar urged the Court to strike down Maharashtra’s SEBC Act, which extends 16 percent reservation for the Maratha community as unconstitutional.
The Bombay High Court judgment which upheld the Maratha reservation has been challenged as being unsustainable, contrary to the Indra Sawhney judgment and liable to set aside. The statement taken on record by the High Court that the Maratha community has been backward since 1902 is completely baseless, Datar said.
The Maharashtra government, through the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act had extended a 16 percent reservation for the Maratha community in public employment and education.
In June 2019, the Bombay High Court upheld the validity of the SEBC Act, although it reduced the proportion of reservation extended for the Maratha community from 16% to 13% in public jobs and 12% in education.
The High Court ruling was challenged before the top Court, which recently decided to hear all States in the matter after the question of whether the Indra Sawhney case should be reconsidered cropped up.