[Maratha Reservations] For how many generations will reservation continue? Supreme Court [FULL ACCOUNT]

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..Attorney General KK Venugopal yesterday completed putting forward his views on the issue. Click here to read a live account of the arguments made yesterday (Day 4)..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. .Rohatgi says one reason is the developments in the law in the last 30 years, which will take into account the 103rd amendment also and certain other amendments.Rohatgi: There are several reasons why Indra Sawhney warrants a re-look.Rohatgi tells the court that he will argue on whether the Indra Sawhney case warrants a relook..Rohatgi: Indra Sawhney is a judgment only on Article 16 (4). It is not a judgment on Article 15 (4). The judgment actually says so and I will show that..Rohatgi: I also seek to raise a doubt on the correctness of Indra Sawhney. There are several heads which according to me would require a relook..(Other reasons why Indra Sawhney requires a re-look)Rohatgi: There is some intrinsic material in Indra Sawhney that requires a relook. For instance, the Mandal report itself said to have a relook after 30 years. That is an intrinsic material..Rohatgi argues that Indra Sawhney case was thus a decision of 4, 3 and then 2 Judges..Rohatgi: In para 518, Justice Sawant's opinion says that 50% can be breach but depends on the facts of each case, including the grade of post involved...There is a contradiction in terms... (Rohatgi refers to Justice Sawant's conclusions).Rohatgi: Justice Pandian says that you cannot have 50%...There is a conundrum in the case of Justice Sawant..Rohatgi: The first four (including Justice Jeevan Reddy) held that normally it (50%) will not be breached except in exceptional circumstances - so there is a window (of far-flung area). That example is not absolute, only illustrative.Rohatgi: There are five independent opinions. Three completely dissenting saying 50% cannot be breached (without exception) - Justices Kuldeep Singh, Sahai and Justice .... .Rohatgi: It is not an 8:1 judgment. It is a judgment of nine judges divided into 3 groups. Justice Jeevan Reddy plus 3 others is the majority..Rohatgi: You don't form separate splinter groups. This problem did not start with Indra Sawhney...It was compounded in Keshavandha Bharathi....Rohatgi submits that judgments should have a minority and majority view..Rohatgi argues that the sweep of Article 15 is wider than Article 16 (4).Rohatgi argues that Indra Sawhney should have seen the mandate of these provisions and if they had seen, the result may have been different..Rohatgi argues discussions on Articles 15, 16 have to be holistic, considering the mandate of directive principles of state policy. He adds that though the argument was raised in Indra Sawhney, the court said we are looking at Art 16 (1) and 16 (4), on a balance of these, cannot cross 50%..Rohatgi: Having different groups is not sanctioned by the Constitution. It is in this backdrop, we will examine the various features of Indra Sawhney.Rohatgi reads Article 38 (State to secure a social order for the promotion of welfare of the people). .Rohatgi reads Article 37, coming under Directive Principles. Points out that this means in making laws, State should bear in mind ideals of Constitution - equality, classless society, a roof, 2 meals, freedom of expression, basic living wage, right of livelihood, education etc..Rohatgi reads Articles 15 and 16. He goes on to read Article 16 (6), concerning Economically Weaker Sections, inserted by 103rd amendment..Court: This limit has come from where? It is the manifestation of right of equality.Rohatgi: I am saying that these have to be looked into when you make law, when they made a law for reservations - more than 50% - this provision does not say that the limit will be struck at 50%.Court: These are obligations of the State. If the state has to do all this ...but other provisions also have to be looked into.Rohatgi: If you have to provide elimination of inequality in status - do away with caste, do away ultimately with backwardness....Rohatgi: Will the balance be struck by as a limit not to be breached or by state on individual analysis within state, on nature of the job, seat...Will it be struck by a court - that I cannot be breach 50%?.Court: Balance has to be arrived at... (between) Articles 16 (1), (4) .Court: Indra Sawhney has taken the view... Thomas, also it was accepted...16 (4) is nothing but a manifestation of 16 (1).Rohatgi: Balaji said Article 16 (4) is an exception to 16 (1) .Rohatgi: Balaji for the first time said that on a broad and general rule we dilute 50% because 16 (4) is an exception to 16 (1). That is the rationale for 50%....Rohatgi: If the basis for 50% is gone, in Thomas and Indra Sawhney, can 50% remain when basis of 16 (4) being exception is knocked out? Then rule of 50% must also be kocked to the ground. .Rohatgi goes on to argue that when there is no limit expressly mentioned in the Constitution, "There was no warrant for keeping 50%".Court appreciates a chart submitted by Rohatgi which also details various case laws, says he has done a wonderful job and that it would be of great assistance to the Court..Rohatgi: Thank my juniors, it took a lot of time. This will be a great effort which can....Rohatgi submits that whether 50% rule will remain after constitutional amendments is an issue to be considered. He also refers to the 103rd amendment (EWS reservation), which is pending consideration before a constitution bench..Rohatgi refers to reliance placed on Ambedkar's speech that reservations must be confined to a minority. .Rohatgi: Ambedkar's statement was premised that the draft article was an exception to the main article. Speech has to be read in this context..Rohatgi: The majority in Indra Sawhney held that Article 16 (4) is not an exception to 16 (1). When you debunk the theory 16 (4) is an exception, you can't then take the speech of Ambedkar and say it applies to a minority..Rohatgi: Your lordships have repeatedly held that what the constitution makes said will never be frozen in time and that it can even be discarded with the passage of time. .Court agrees: Constitution is a growing document and is dynamic.Rohatgi goes on to argue that when the Indra Sawhney case has a contradiction and debunks the theory of Article 16 (4) being an exception, it cannot go a balancing of 16 (1) and 16 (4) and rely on Ambedkar's speech..Rohatgi: Mandal was premised on the census of 1931.... relying on this data...The intrinsic material of Mandal is from 1890 or data from 100 years ago, the population has changed ... population today is 135 crores..Rohatgi: How can you talk about this data which will govern the rule forever. Can this be frozen in time?.Rohatgi: The Indra Sawhney judgment does not consider the impact of directive principles. Any judgment which discusses fundamental rights and its sweep cannot do it without (considering directive principles)... that view is a one-sided view..Court: Mr Rohatgi, the purpose of review (as directed by Indra Sawhney case and Mandal Commission) was that those who have come out from backwardness must be eliminated. .Court: 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?.Rohatgi: 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... .Rohatgi: 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, backward persons may also have increased....Rohatgi argues that this is why Indra Sawhney rule must be relooked. .Court: The relook is of the list of backward classes. That was the idea of the Mandal commission and Indra Sawhney case. .Rohatgi: It can also lead to a situation, to see if backward classes have increased.Court: If they (backward classes) have increased, the government has to work harder .Rohatgi says it is not just about the government working harder: It is also providing a bigger piece of the cake..Rohatgi: These are arguments I am placing to say you must revisit (Indra Sawhney rule)... The Constitution does not say 50% anywhere. Court read it into it... .Court: Constitutional provisions are interpreted by courts, that is how constitution grows.Rohatgi: I agree, but with great respect, population, periodic review, when all these things have to be reviewed....Rohatgi submits that law also evolves according to changing society..Rohatgi: ...concept of transgender was not there, today we accept. By passage of time, population, society, thinking, needs change. When this happens, question is whether the pie of the backwards remains at 50%?.Rohatgi argues that if the State's power of identifying socially and educationally backward classes is taken away, a part of the Indra Sawhney case also gets diluted since it directed the constitution of State commissions..If State power is taken away, these commissions become redundant, Rohagi argues..Indra Sawhney is a case only of Article 16 (4) and not 15 (4): Rohatgi .Rohatgi argues that courts have disapproved of 50% rule, right from 11-Judge Bench in Balaji's case. This is why the Indra Sawhney case must be revisted, he argues..Rohatgi refers to more cases. .11 Judges will bind today and will disapprove Indra Sawhney: Rohatgi .Rohatgi reads from T.M.A.Pai Foundation & Ors vs State of Karnataka case..Court: This case deals with right under Article 30 of the Constitution - right to minority... in that context, these observations were made..Rohatgi... but the flavour of 50% has come only from these judgments. Otherwise, Stephens would not have pegged it at 50%, were not for these judgments. .He argues that 11-Judge bench has disapproved of 5-judge bench on aspect on 50% rule.Rohatgi: 50 cant be good here and bad there or bad here and good there. The flow of TMA Pai or Stephens is from the judgments we are talking about. That is why I say, it is necessary to have a re-look.Rohatgi: Not trying to say Indra Sawhney is wrong. The question is does it require a relook either because much water has flown under the Ganges by constitutional changes or 30 years have gone, aspirations changed or if there is a doubt over not looking at directive principles....Court: I think Indra Sawhney is also referred to in TMA Pai. Same, Justice Kirpal's judgment. .Rohatgi: For the time being, my impression was it was not there. but I will check. But if it is there, it makes it worse. .Court: Directive principles do not apply to minority institutions, especially under Article 30. But they always apply to the state, as you have said. There was this concept of mixing up reservations... and that was correctly overruled in TMA Pai..Court: It probably didn't require 11 Judges (7 judges would have been enough)... 11 Judge Bench was constituted to see if the concept of minority requires a relook....Rohatgi argues that though the context is a little different, the clash is still between a minority of students and general and the balancing is between minority vis a vis general. .Rohatgi: Here also (in matters of reservation) you have general and backward students....Court: 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...?.Rohatgi: In 70 years, we have not reached anywhere near our ideal goal. That is why the Constitution was amended (amendments to Articles 15, 16). .Rohatgi: 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.Rohatgi: Parliament has stepped in to say what the government of the day is doing is not good enough. You have to work harder. You have to pull up a vast majority by their bootstraps.Rohatgi:... 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% cannot be the limit. It was said by justice Fazal Ali...Rohatgi: Now, it is possible that 50% ought not to be guiding principle because the last 40 years shows that we fall miserably short of the goal .Rohatgi argues that courts must leave it to the state to fix reservations, that the Constitution leaves it to the state and Corts should not put a limit on reservations. .Rohatgi: We will examine facts of individual case brought before us.Rohatgi refers to a Uttarakhand High Court Judgment where it was held that reservation cannot thrust on a State that does not want it. He argues that Uttarakhand is perhaps a state where there is no need for reservations as there are no backward population..Rohatgi: That is a State (Uttarakhand) nowhere near 50% rule, while most of the States are beyond 50%. That (Uttarakhand) is an exception, that they don't want reservation because there are no backward. In other states, somebody is at 50, somebody is 60%.Rohatgi: The fact of the matter is parliament should know what is going on in the country. If parliament knows it is more than 50% and has given 10% to a class of economically backward section, no warrant from court to say it cannot go over 50%.Rohatgi: 103rd amendment (up to 10% reservation for Economically Weaker Section) is a clear pointer to the overruling of the principle of 50%.Rohatgi: 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 (EWS reservation)?.Rohatgi: All judgments prior to Indra Sawhney do not lay down a uniform rule, every judge speaking for himself. ..Indra Sawhney follows Balaji even though the basis of Balaji is gone..Court refers to Rohatgi's submission over there being multiple views (4:3:2) in Indra Sawhney's case. .Court: Numerically that is correct. But if you go by the greatest common factor, there is 50% (4 judges spoke of 50% limit with exceptions , 3 spoke of "inflexible" 50% limit).Rohatgi: ... there is no doubt that the judges are speaking in one voice... (But the view of 4 judges) I am saying it is wrong because Balaji's basis is gone..Rohatgi also notes that in Indra Sawhney, one group of judges said that exceptions can be made to 50% rule. .Rohatgi: One example is given of far-flung areas, there are many examples... how do we read this?.Rohatgi refers to NM Thomas case. .Rohatgi: Two judges said no percentage can be fixed, others (5 of the 7) did not comment. If others did not dissent, two's opinion is of seven Judges itself?.Rohatgi refers to more cases. .Rohatgi: What I'm trying to say is, it is difficult to understand the rationale or conclusion in these cases..Rohatgi: When we are talking of the interplay of directive principles, Article 39B will also directly apply to our case. 39B itself is referred to 9 judges. That is the import of property owners case..Rohatgi notes that the word "Ceiling" first came from the case of Nagaraj, while interpreting Article 16..Rohatgi argues that he is not saying that every judgment is right or wrong, that he is trying to show that since 1963, different judges have given different interpretations and there is no uniformity. He adds, there are changes in law, Constitution, population, the TMA Pai case.When a number of states have reservations exceeding 50%, can we say this is not a burning issue, that this doesn't require a relook after 30 yers, TMA Pai, Constitutional amendments? - Rohatgi argues..Rohatgi argues that the aspirations of people are such, there is a growing population of backwards, that the dispute of clash of backward and forwards has engaged the attention of the Constitution and every state. .He argues, therefore, there is a need for a relook..Bench rises for lunch break. Senior Advocate Mukul Rohatgi to continue arguments after the break. .Senior Advocate Mukul Rohatgi argues that the reservation for the Economically Weaker Sections by 103rd Constitutional amendment with a limit of 10% is in addition to the 50% limit set by Indra Sawhney case..Rohatgi: The basis of Indra Sawhney is completely gone. Parliament that there is a limit of 50% limit in the Indra Sawhney case. Parliament knows every state is at 50% or more..Rohatgi argues that EWS are those specified by the state on basis of income and other economic issues- not by parliament or a schedule to constitution..Rohatgi argues that even if Indra Sawhney was valid in the past, it has now been undone by Articles 15 (6) and 16 (6) (EWS reservation, 103rd amendment) .Rohatgi: Therefore, there is no warrant in saying that there is no need for a relook of Indra Sawhney case.. (Parliament through 103rd amendment) overturned Indra Sawhney completely by adding 10%, knowing every state is beyond 50% (in reservations). .Rohatgi argues that therefore there is no need to carry on with Indra Sawhney case, that it (50% limit) is invalid today, that every other part of Indra Sawhney has also been overruled by the Constitution at various points in time .Rohatgi: The entire basis of Indra Sawhney has been undone by parliament over the last 30-40 years. How can it be said we must work under the regime in Indra Sawhney when parliament is directing attention at some other place?.Rohatgi points out that Indra Sawhney had also said that backwardness under Articles 15 and 16 cannot be adjudged by economic criteria..Rohatgi: (Now) Articles 15 and 16 provide additional reservations to EWS. It can be found in Articles 15 (1) and 16 (1) because 15 (6) and 16 (6) (inserted by 103rd amendment) ultimately flow from 15 (1) and 16 (1). This (EWS case) is now pending before Constitution Bench..Rohatgi reads a judgment, reads that when testing restrictions on fundamental rights, it must be tested taking into consideration changing factual conditions, objects of state policy, whether restrictions are to achieve directive principles etc..When testing the validity of a restriction on fundamental rights - in this case, crossing 50% for reservations - it cannot be tested unless you test it on the mandate in directive principles of State Policy: Rohatgi.Rohatgi notes that there are several burning issues of reservation today, including domicile reservation extended by several states, EWS reservation etc. .Rohatgi: These are issues that are very relevant today and are burning.. how can we say we are bound (by Indra Sawhney)?.By virtue of 10% reservation for the economically weaker, findings in Indra Sawhney that backwardness cannot be adjudged by income or economic criteria alone are gone, Rohatgi argues..Court observes that while some paragraphs of Indra Sawhney may go after some constitutional amendments, rest may remain. .Rohatgi: I am saying, how many paras will you ignore? Paragraphs on economic (criteria), promotion, carry forward...how can half of Indra Sawhney be binding?.Court observes Parliament could have said 50% rule has been taken away; while exceptions are carved out, rest of Indra Sawhney remains. .Court: Parliament could have said 50% limit (is removed) .Rohatgi: Parliament has said it in polite words. How many times will you carve out?.Rohatgi argues that the practice of different judges writing judgments agreeing with some parts, disagreeing with other parts, is not what is expected by the constitution..Rohatgi adds that whether or not Maratha Reservations would fall under "exceptional circumstance" would depend on the merits of the report..He argues that no judgment should be viewed as set in stone. .Rohatgi: No judgment can be viewed as a Euclid's theorem or a statue. .Rohatgi refers to cases of Bharat petroleum case, Renu Sagar case..Supreme Court again expresses appreciation for the chart submitted by Rohatgi, prepared by his juniors. Says it will record its appreciation.. Court also requests: This chart, you can give a soft copy, it will be useful. .Senior Advocate Rohatgi has concluded. .Senior Advocate Paramjit Patwalia begins submissions, says he will be adopting Rohatgi's arguments as well..Patwalia says he will argue on the scope of judicial review of the Gaikwad Commission report, what the commission has actually done. .Patwalia argues that the submissions made against the Gaikwad committee report does great injustice and is not being fair..Patwalia submits that the Gaikwad Commission has done a detailed study, has referred to history, referred to all previous commission reports, after coming to conclusions has also looked into whether existing reservations are enough for socially and educationally backward classes..Patwalia refers to closing remarks made by Senior Adv Pradeep Sancheti of Gaikward Commission being "for Marathas, by Marathas"; Patwalia contends that these remarks were rather uncharitable to the members of the commission..Patwalia points out that Gaikwad Committee members were social scientists, judges, doctorates, people in social sciences, teaching, professors, PhD holders..Patwalia: There was no challenge to the constitution of the commission at any stage. To just to say such a thing in passing is not only to prejudice the court but also uncharitable to the commission.Patwalia says that he will also show what extraordinary circumstances existed to extend Maratha resservation, beyond 50% limit..Patwalia: ... if we fit 30% Marathas into existing 27% reservation - there are 0.12% job for 1 person over which 100 people are fighting - you will give them a complete mirage and not an actual right..Patwalia refers to observations on "transformational constitutionalism" in Navtej Singh Johar case; observation in BK Pavitra II that the Constitution was intended to change caste-based feudal society, centuries of oppression and discrimination against marginalised..Patwalia refers to a judgment, reads observation that the court must give due weight to the estimation of backwardness, whether backward classes are adequately represented by the State..Patwalia says that he is reading on the scope of judicial review, reads out that no method is perfect when sociological studies are concerned; that it is where criteria of the report are perverse/unrelated to identification of backward classes that judicial examination comes in..On the Gaikwad report, Patwalia submits: My report is extremely exhaustive... So long as what is taken into consideration is relevant, your Lordships may not go into it.Patwalia: The sample size is a minuscule part of the total survey... in Balram, the court quashed report on ground sample size is small. The setting is identical..Patwalia is reading the case of State Of Andhra Pradesh And Ors vs U.S.V. Balram..Patwalia continues reading from the judgment. .Patwalia says that the Gaikwad Committee was chaired by a former judge, who was well aware of earlier judgments. .Patwalia: To say that the report is self-serving is being extremely uncharitable. You can agree or disagree with the conclusions..Patwalia: The learned judge has done an outstanding job. Every judgment has been considered. .Patwalia argues that a large part of the NCBC order rejecting the contention that Marathas are a backward class was based on a book on the history of Marathas by Stewart Gordon. .Court recalls submissions by Senior Advocate Sancheti that for urban areas, very few persons were taken as sample size, that none was interviewed in Mumbai, and that the Gaikwad report is based on old data from 1861 and 1931. .Patwalia: When I read the report, both questions will be answered.Patwalia reads from the Gaikwad report, on the procedure adopted by the commission - reads that samples were collected from backward classes, that sample size was framed after consultation with social scientists, how areas were selected..Patwalia argues that it is wrong to say urban areas were not studied, reads out how municipal corporations were selected for the survey from urban areas..Patwalia reads out how indicators of backwardness were selected, how in addition to collecting information through sample collection, public hearings (21) were conducted on the subject of reservation for the Maratha community..Patwalia reads out how inputs were sought from universities to ascertain backwardness/ representation of Maratha community, how expert inputs were invited, how data submitted by the Rane committee was examined and verified..Patwalia reads that public notices were issued to the general public, public meetings were held on either objecting or favouring extending reservations to the Maratha community on grounds of backwardness. .Patwalia says that a public hearing was conducted in Mumbai as well .Court notes that as far as Mumbai is concerned, it was in a "Mumbai office", not a public hearing, where 10, 125 representations were received. .Patwalia agrees, says that this was only the representations.Court asks what the date mentioned in the submission indicates - whether it is the date or representations or the date of public hearing. .On being told it is date of hearing, Court adds: In Solapur, 62,000 people came in one day?... In a stadium?.Court: Neither the commission is clear what happened, nor are you .Patwalia: I am absolutely clear, these are the date the representations were received. .Court: Then what is the purpose of the column date? .Court: Survey was conducted by some agencies appointed by you? .Patwalia: Correct.Court says it is unable to understand how the Committee only took into consideration the representations in favour of reservation. .Patwalia: There are against also, in serial number 7. .Court asks for dates on which the public hearings were held. Patwalia says that public notices for hearings are in the annexures .Patwalia: Can file a chart on public notices. It has 1,000s of pages as annexures. Not even other side's case that notice was not given in advance..Patwalia continues reading the Gaikwad report, says all information up to 2016 was collected by the commission. .Patwalia submits that an important finding that led to the conclusion that Marathas are backward was that Marathas are part of Kunbis. This based on documents, detailed surveys, Patwalia adds..Court: But Mr Patwalia, one of the arguments of Mr Sancheti is that Kunbis are already there in OBC..Patwalia: ...but the national commission finding that Marathas and Kunbis are separate... in the report of the central commission - there is nothing in that, except one book....Court says Patwalia can continue submissions on Monday. .Advocate VK Biju makes mention, refers to Senior Advocate Dhavan's arguments, seeks to supplement certain submissions. He appears for an intervenor, a social activist from Mumbai..Court: We will consider intervenors in the end .Advocate Biju: We want to supplement... .Court: If time permits, we will entertain at the end... .Biju: We will wait .Hearing over. To continue on Monday.

[Maratha Reservations] For how many generations will reservation continue? Supreme Court [FULL ACCOUNT]

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