Maratha Reservation: Lawyers urge reconsideration of Indra Sawhney verdict; Supreme Court to hear appeals from January 25

Senior Advocate Kapil Sibal on Wednesday batted for the reconsideration of the Supreme Court's 1992 judgment in Indra Sawhney v. Union of India during the hearing of an appeal against the 16% per cent Maratha reservation under the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act,.A nine-judge Constitution Bench of the Supreme Court had in Indra Sawhney held that Article 16(4) of the Constitution does not confer reservation in promotions, but only reservation in appointments. It was also held that the ceiling of 50 per cent in reservations cannot be breached. .A five-judge Constitution Bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and Ravindra Bhat on Wednesday issued notice to Attorney General for India KK Venugopal in view of the fact that the case involved interpretation of Constitution. ."One of the issues before this Constitution Bench being interpretation of Constitution (One Hundred Second Amendment) Act, 2018, let a notice be issued to the Attorney General for India," the Court said. .Senior Advocate Mukul Rohatgi, appearing for Maharashtra government, urged the Constitution Bench to vacate the interim order passed by the Supreme Court in September. The Court had by its September order imposed an interim stay on extending reservation benefits under the Act to Maratha community during the pendency of the matter before the top court. .It was Rohatgi's case that the recruitment process of 2,185 candidates was stuck in limbo, as only appointment letters were to be issued to them. "At the time when stay order came, the entire recruitment process for 2,185 people was undertaken and the process for employment was declared successful. Due to COVID, they could not be issued appointment letter. The data of these students was not before the earlier bench. This data has come now before a month. The 2,185 should not face the guillotine of the September 2020 order," he submitted. .However, the Constitution Bench shot down the request, stating that it would post all the appeals for final hearing. .Rohatgi also questioned whether a bench can pass an interim order while referring a case to a Constitution Bench. This would be a question of law for the Court to delve upon, he said..Senior Advocate Kapil Sibal, appearing for an applicant, argued that in several states, reservation has exceeded the 50 per cent limit. "Any decision in this case will have impact on Tamil Nadu and many other states. This case has huge ramifications, the Maharashtra case cannot be decided in isolation. We should collate all matters pending relating to breach of 50 per cent limit and hear them together.".This case has huge ramifications, the Maharashtra case cannot be decided in isolation.Senior Advocate Kapil Sibal.Sibal further stated that the Indra Sawhney case needs a re-look, and that it ought to be "looked into by an eleven-judge bench"..Senior Advocate Ranjit Kumar supported Sibal's contention and added that the need for re-consideration has already been laid out in one Supreme Court judgments.."In State of Punjab vs Ravinder Singh, Indra Sawhney has been reconsidered and some paragraphs state how the Sawhney judgment needs to be reconsidered. I can show how this judgment needs to be reconsidered", said Kumar. .However, Senior Advocate Gopal Sankaranarayanan, appearing for the petitioners, argued that if the State takes a stand that Indra Sawhney needs to be reconsidered, then "completely different written submissions" would be needed by the petitioners. However, Justice Bhushan stated that the Bench cannot limit the counsel as to what they want to argue. .After hearing the parties, the Bench stated in its order,"We are of the view that looking into the issues raised in this appeal and the consequences to the followed, it is necessary that final hearing of this appeal be completed as early as possible.".Given the imminent winter vacation and the fact that the first two weeks after reopening are miscellaneous weeks, the Court directed that the matter be listed on January 25, 2021. It was also made clear that hearings would take place on a day-to-day basis..In September this year, the Bench of Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat had referred to a larger Bench a batch of petitions challenging the SEBC Act, which provides for reservation in employment and education to the Maratha community in Maharashtra.The Court also held that in the meanwhile, there will be no such reservation in jobs and admissions. It also held the following:.As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these Appeals are referred to a larger Bench. These matters shall be placed before Hon’ble The Chief Justice of India for suitable orders.Admissions to educational institutions for the academic year 2020-21 shall be made without reference to the reservations provided in the Act. We make it clear that the Admissions made to PostGraduate Medical Courses shall not be altered.Appointments to public services and posts under the Government shall be made without implementing the reservation as provided in the Act..The Bombay High Court in June last year had upheld the reservation granted to the Maratha community in admission to educational institutions and appointments to posts in public services..Before the Bombay High Court, the SEBC Act of 2018 was assailed by the petitioners as being a fraud on the Constitution of India, as it proposed to hike the reservation in Maharashtra from 52 percent to 68 percent. This, it was contended, was in violation of the Supreme Court’s judgment in Indra Sawhney v. Union of India..In July 2019, the Supreme Court issued notice to State of Maharashtra in the appeals challenging the Bombay High Court judgment which had upheld the reservation for the Maratha community..[Read order]