Maratha Reservation: Inconceivable any amendment would be brought by which no State will have power to identify SEBC: AG Venugopal [LIVE UPDATES]

A Constitution Bench of the Supreme Court is hearing the petitions challenging the validity of the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, which had extended a 16% reservation for the Maratha community.The Court had earlier also decided to hear all States in the matter, after a question of whether the Indra Sawhney case should be reconsidered cropped up. This case puts s 50% cap on the reservation permissible for backward classes.Final hearings in the matter had commenced on Monday. To read accounts of the hearings on Day 1 and Day 2 click here and here. To read Day 3 arguments, click here. Live updates of the hearing today feature here..Marlappalle reads from Bombay High Court Judgment that "it was not the intention of the Parliament to stall the entire process in the respective States till the exercise contemplated by the 102nd Amendment gets converted into a reality." He argues that this reasoning is unacceptable..Marlapalle reads from the 2019 Bombay High Court Judgment that had upheld Maratha Reservations.Marlapalle concludes submissions..Marlapalle argues it is settled that it is only the President's right..Marlapalle: On both counts, it is not acceptable. He asks Court to take note of observations in certain cases, gives citations..Marlapalle reads Bombay High Court's observations regarding there being "extraordinary circumstances" for exceeding 50% since State has accepted #Marathas as backward, as existing 19% quota for OBC should not be disturbed etc..Sadavarte: The argument on backwardness and the Gaikwad committee report are secondary... Bombay High Court judgment and Act of Maharashtra are bad in law. There are procedural lapses..Sadavarte: When the 102nd amendment is accepted as it is, the reservations have to be given finality by the president and parliament. That has not happened..Sadavarte: If the reservation is changed, it will amount to change in the reservation list.Sadavarte cites Keshao Vishwanath Sonone's case, says that this case makes it clear that you can't change the presidential list and order.Sadavarte: I do not agree with Mr Shyam Divan that they may be shifted to 27%. if this is accepted...backwardness is accepted..Sadavarte argues that EWS reservation is available to those other than persons to whom reservation under Article 16 (4).Sadavarte concludes..Sadavarte: Milords may kindly, on the basis of law see... 50% and backwardness is secondary. The Chinniah case and 102nd amendment...never came to finality. The reservations don't stand..Sadavarte: Marathas are not the only citizens of India, we are also citizens of India..This is an action plan of Maratha leaders, Sadavarte argues..Court queries when State has the power to legislate on its services, would it not be part of power under Article 16 (4)? When they can set up their own institutions, don't they have the right to say who can be admitted?.Talekar argues that there was no legislative competence..Talekar: Yes.Court: All submissions have almost been covered, if you have anything to add....Court responds that it cannot issue a mandamus to provide reservations, these are enabling provisions for the state, Court cannot issue directions..Talekar says that there is a plea seeking reservations for Muslims.Court says these arguments have been addressed. Any other argument ... We want desperately to hear you saying something different, something new?.Talekar argues on how the power to make reservations vests with State, but the power to identify backward classes rests with President and Parliament..Talekar: They have not been dealt with.Court: Your arguments have been taken note of by the High Court Judgment.Court: Now your grievance can be addressed by the National Commission... you can refer it to the National Commission, that you are backward class..Talekar submits that unless directions are issued, the State won't consider. .Court: What are you endeavoring at Mr Talekar? Come to prayer G. You want identification for the Muslims (as a backward class)... All your colleagues have agreed, that identification is vested with the President....Supreme Court: We will consider what is to be done in your case..Deshpande: Article 16 (4) uses "backward classes of citizens". From these citizens, only a small portion of SEBC is taken out. Only the central list will operate for SEBC. For others, it will be the state list, which will be on the basis of the state commission's recommendations.Deshpande reads from written submissions. Despande argues after 102nd Amendment, the State's powers under Articles 16 (4), 15 for making reservations are denuded in so far as it relates to "Socially and Educationally Backward Classes", but for other "backward classes" it remains.Desphande agrees: Because 102nd has denuded power of State under Articles 16, 15 to the extent that it will concern SEBC.Court: You are saying there cannot be a state list for SEBC?.Deshpande: State list is there, excluding SEBC for which special provision is there....Court muses on an alternative view: That when parliament has the power to make law for inclusion and exclusion, why can't we say that there is a state list for which parliament doesn't have power?.Desphande: I fully agree.Court points out other counsel have argued it (SEBC reservation) is restricted only for identification and thereafter there can be a state list .Advocate Amit Anand Tiwari is making submissions. .Court notes that if some of his submissions are accepted, the court would have to scrap the first three questions of reference to the larger bench. .Court: ...don't make such unreasonable requests..Tiwari responds that he is only making arguments so the court may take a view that this can be done .Court: As you have said, you are the 11th batsmen, (if the submissions are accepted), it will be as if all these batsmen before you have not played at all. .Tiwari requests the Court to permit him to make further submissions, he says that he apologises if the submissions have offended the Bench. .Court: As a Constitution bench we cannot scrap the questions .Tiwari: Not saying scrap, submitting on the remit of questions....Tiwari submits that even prior to the 102nd amendment, reservations were implemented by states through state commissions set up "with the assent of the president because it was a field occupied by Article 340.".Tiwari refers to an earlier commission .Court: We have to consider the 2018 Act... .After the 102nd amendment, the 2018 Act falls afoul of reservations through identification by the president and parliament, Tiwari submits .Court: That argument has been argued threadbare.Tiwari says that he is trying to show that the federal structure is not altered after the 102nd amendment. .Tiwari: I am saying that identification for reservations has never been the exclusive preserve of the state.Tiwari: That is why earlier commissions in States took assent of the president under article 254. The field was already occupied by a central law.... Court: Alright. .Tiwari: On procedural and substantive aspects, 102nd amendement is valid .Senior Advocate Preetesh Kapur begins submissions..Kapur is arguing on the interpretation of 102nd amendment. .Court notes that some of his submissions run contrary to earlier submissions made on the aspect of whether State lists will continue. .Preetesh Kapur is appearing for Kapur appears for petitioner challenging 2011 Amendment Act concerning reservations in Chhattisgarh..Kapur is making submissions on the use word "Central" in Article 342A of the Constitution .Kapur argues that"Central list" in Art 342A is nothing more than the presidential list, and every constitution bench judgment concerning Articles 341 and 342 used the term "presidential list" .Court: Those were regarding 341 & 342. 342A "presidential list" word has not been used..Court observes that the writ petition filed in relation to Chhattisgarh concerns factual aspects and concerns that should ideally be considered by the High Court first rather than it be heard by Supreme Court in this case. .Court: With regard to Chhattisgarh, there are certain schedule areas also? .Kapur: Yes .Court: Have you said anything about that in your petition? .Kapur: Not with relation to hill areas... It is only with relating to challenge to the Act..Court: These are matters you should address before Hig Court first.. there are hill areas. .Kapur: Please hear me on the question of law .Court: Chhattisgarh is not an ordinary State. There are special reasons for reservation..Court: The matter clearly warrants separate consideration. This can't be a clever attempt to put all issues in one basket. .Kapur responds that there are at least two questions of law that were bound to be the same, including consequences of 102nd amendment..Court: We will not entertain the Article 32 petition, we are inclined to send you to High Court. We are of the opinion that it requires consideration of the High Court first..Court dictates order, says it is not entertaining Article 32 plea. Petitioner granted liberty to move HC.After submissions by Advocate Jaikriti S Jadeja, Court also de-tags a plea challenging a 2016 Haryana Act and directs it be posted before the appropriate bench..Court asks if there are any other petitioners arguing. .Court is informed that there is a petition challenging the validity of the 102nd Constitutional Amendment itself. Adv Amol Karanade appears for the petitioner. .Court issues notice, says it will hear arguments after others.In response to Court's earlier queries, Senior Advocate Gopal Sankaranarayanan informs Court that there are horizontal reservations in Maharashtra for the physically handicapped (5%), hilly areas (3%), women and Maharashtra Karnataka Border quota..Attorney General KK Venugopal begins submissions..Court informs AG Venugopal of the petition challenging validity of the 102nd Constitutional Amendment. .AG Venugopal says that he would argue on this petition separately..AG Venugopal: When a Special direction is issued by a 9 Judge bench (and the Government shows every indication to implement it)- is it conceivable that an amendment to the constitution will be made, by which...states are denuded of the right to identify backward classes?.AG: According to me, with the imprimatur of the 9 bench judgment, it is inconceivable that any such amendment would be brought into force, the effect of which would be that no State would be having the power to identify SEBC..AG: If this be so, even if the govt of India or parliament decided that they would denude the states of the power... (it would require) an express provision to that effect..AG reads more observations from the Indra Sawhney case. .Court: Then there was no need for amending Articles 366, 342, 338... .AG: I will show the difference between the 1993 act and why it became necessary to have the 102nd amendment..AG: If you deprive the State legislature of a State or a State executive of the right given under Articles 15 (4) and 16 (4) for identification the socially and backward classes, one would have to add a proviso or amend 15 (4) and 16 (4)..AG: Articles 15(4) and 16(4) from the very inception is recognised as a source of power, for the state as well as centre, to identify socially and educationally backward classes (SEBC), because without identification one cannot make provisions for the advancement of the SEBC.AG: No such amendment (to Articles 15(4) and 16(4)) has been made by which the operation of 15 (4) or 16 (4) has been affected in any manner directly..AG: According to me, you cannot indirectly modify the impact of a constitutional provision.. especially when it means advancing the purpose of the preamble to the constitution and directive principles of constitution.AG: The preamble says 'justice, social, economic and political - which would require affirmative action and both Articles 15 (4) and 16 (4) are prescriptions for affirmative action.AG: ... "equality of status and opportunity" which would necessarily mean that where there are unequal, you will take legislative and executive action to bring unequal on par with the rest of the group. .AG: India has a huge population that lives below the poverty line. Surely their access to education and jobs depends on their being qualified and trained ....AG: ... There was a theory accepted by Indra Sawhney case that groups that were identified by the caste to which they belong would indicate social and educational backwardness. .AG: As a result... states... basically identify groups which were backward because of the caste to which they belonged, which deprived them of an equal opportunity to compete with non-backward or forward classes.AG: This is the genesis of reservations and benefits given to the socially and educationally backward..AG reads from written submissions, reads out provisions of the National Commission for Backward Classes Act, 1993..AG: So far as Punjab is concerned, there are 71 castes in-state list, while there are only 68 on the central list .Court: When was the Punjab list prepared Attorney? .AG: 2016 .Court: Because initially in 1993, when the list was prepared, the central list - it is said that list by Mandal commission and the state list were taken into account and common castes were included .AG: Yes.AG: Now they are amending it from time to time because one of the unfortunate vices of power given to the state under Articles 15 (4) and 16 (4) is that before each election, I have found personally, in Tamil Nadu one group ... is being introduced and .. votes are obtained.AG: At the same time it is not considered in the nature of a bribe which is offered.. this is one of the unfortunate....AG adds that his submission on the Punjab list was only to show that the State and Central lists can be different,.AG Venugopal moves on to submissions on Article 342A, inserted by the 102nd amendment to the Constitution. He reads objects and reasons for the amendment..AG Venugopal argues that it is the central list alone that is to be covered by Article 342A so far as the intention of parliament is concerned..On the point of there being State and Central lists, AG has argued that this is also what is to be understood on a reading of Article 15 (4), 16 (4) read with Article 12 of the Constitution..Court breaks for lunch. Attorney General KK Venugopal to continue submissions after the break..Attorney General KK Venugopal continues submissions. Refers to a select committee report..Court asks AG to read out a certain excerpt from the report, AG reads that the amendment is not meant to affect State powers of inclusion and exclusion in lists of backward classes..AG: So far as Articles 15 (4) and 16 (4) is concerned... they would remain untouched and undisturbed by Article 342A. The two stand compartmentalised..AG: And pursuant to Indra Sawhney... so far as the States are concerned, they are required to have their own State backward classes commissions..AG refers to Article 366 (26C). .AG says that the state's powers are not touched and that only "socially and educationally backward classes" is defined for purpose of the Constitution..AG submits that the rights of the states which remain untouched "expressly" (by amendment) will continue. He points to opening remarks of Section 366 i.e. "unless the context otherwise requires.".Court poses a query: Section 342A (1), on a plain reading, the president identifies and specifies SEBC with respect to any state for the purpose of constitution.. the "central" list does come here....AG: There are Public Service Undertakings in the Government of India, even offices of Central government in states where there is the employment of the public servants of the union. In these cases, the Union won't take lists of state governments..AG points out that the Central government also has educational institutions such as IITs and IIMs in various States. .AG: Suppose you are reserving in those institutions, you have to prepare a central list. .AG: So far as the state is concerned, there will be union establishments, both public corporate branches of Govt of India... so far as those employees are concerned for whom centre will give benefit - the centre will have to have its own list..AG: Central list will apply to Central government public corporations, Central Government offices such as railways in various states. The Centre does not accept blindly the identification of the State governments..Court: So in the case of Marathas, which the National Commission has rejected (to be included as Backward Classes), according to Centre for purpose of this constitution, Marathas are not backward visa vis the union? But notwithstanding that states can have its own critieria?.Court adds to the query, "for the purpose of debate": Isn't 342A a way to bring about uniform standard for backward classes? .Otherwise, like you said, prior to elections, a number of backward classes are introduced... to overcome this behaviour, the union has evolved 342A....Court:... which means that the union identifies - the power of inclusion is with the union, but power of graning reservations (granting the benefit, decided how much) is left to the State under 15 (4) as with the case of SC/ST. Is that what is attempted?.AG argues State govt has an independent power, which has never been touched under Article 342A. .AG Venugopal refers to the Supreme Court's ruling in Ashoka Kumar Thakur vs Union Of India & Ors, to make submissions on interpreting provisions harmoniously..AG: Article 342A exclusively deals with the central government's competence to identify socially and educationally backward classes for its own purposes - where, in States, central government jobs or educational seats are to be filled up - they have to have their own list..AG: In every state, there is a state list for state institutions and educational institutions and state employment. .AG: To construe this (102nd amendment) as excluding States from exercising power because of (Art 366) 26C is not justified because there is no attempt to modify Articles 15 (4) and 16 (4) which has declared that power to identify backward classes lies both with State and centre.AG: Unless you amend Articles 15 (4) and 16 (4) and denude States of the right to identify backward classes, it would not be right to construe Article 342A as denuding the state's rights..AG reads case of State of Punjab vs Davinder Singh; notes that question of interpretation of Articles 14, 15, 16, 338, 341, 342 342A has already been referred to 7 judge bench. .As such, AG requests that Bench restrict consideration to the validity of identification of Marathas as SEBC.Court responds that since questions are already framed, and since the matter will keep on cropping every litigation "we have to see what is the correct interpretation of Article 342A." .Court adds that it has also issued notice today in a writ petition challenging 102nd amendment.AG notes that writ petition challenging the 102nd Constitutional amendment appears to be on the basis that State's powers have been taken away. .Court responds that it will hear AG on the writ petition when it is taken up, possibly next week..AG concludes submissions. .Solicitor General Tushar Mehta asks the court if he can make submissions after Senior Counsel Mukul Rohatgi makes submissions on Monday. Court agrees. .Senior Advocate Kapil Sibal informs that he can make submissions for State of Maharashtra tomorrow

Maratha Reservation: Inconceivable any amendment would be brought by which no State will have power to identify SEBC: AG Venugopal [LIVE UPDATES]

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