Petitioners opposing Maratha reservation law said in the Supreme Court on Monday that changing the 50 per cent quota cap for Socially and Educationally Backward Classes (SEBC) as fixed by the 1992 judgement, known as the Mandal verdict, will be like having a society not found on equality but caste and it should not be revisited.
A five-judge Constitution bench headed by Justice Ashok Bhushan was told by petitioners including individuals and associations opposing reference to larger bench the question whether the landmark 1992 verdict in the Indira Sawhney case, which caps the quota at 50 per cent, requires a re-look that right to equality is a meta right and is above all the rights guaranteed under the constitution.
The bench, also comprising justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, was told by senior advocate Arvind Datar, appearing for the petitioners, that Article 15 and 16 of the Constitution are intended to promote equality.
50% limit in Reservation
“Right to equality is a Meta right and a right above all the rights and Article 15, 16 are intended to promote equality. To change the 50 per cent limit is to have a society not founded on equality but based on caste,” Datar said, during the day-long hearing.
Datar, who opened the arguments on the question of reference to a larger bench, said there was no need to revisit the Indira Sawhney verdict. An 11-judge bench needed to be constituted to revisit the 1992 verdict, which dealt with several issues, including the cap of 50 per cent quota, he said, adding that it was not required. Since its inception of the Supreme Court, a 11-judge bench has been constituted only five times to examine issues that are unique and of immense constitutional importance, he said.
"Indira Sawhney (judgement) was delivered with so much deliberations and views that in my humble view it need not be revisited," Datar said, adding that the 50 per cent cap had been accepted since the verdict.
He said that in the Indira Sawhney verdict 27 per cent for the SEBC was upheld by the court by the majority, while eight or nine judges said that the 50 per cent limit should not be crossed and that creamy layer should be there. He said that despite several constitutional amendments, Parliament has not interfered with the 50 per cent limit fixed in the 1992 verdict.
The bench asked Datar what his response to one of the arguments made by senior advocate Kapil Sibal, representing Maharashtra that 103rd amendment for granting 10 per cent quota to Economically Weaker Section (EWS) itself indicated that Parliament has enhanced reservation beyond 50 per cent limit. Datar said that quota for EWS is not based on data of socially backward class rather it is based on economically weaker sections and it is across board, irrespective of who you are.
“If at all 50 per cent limit is to be crossed, it cannot be done by the 11-judge bench but by the Parliament,” he said, while quoting BR Ambedkar that if at all 70 per cent government jobs are reserved leaving just 30 per cent for general category, then it would violate principle of equal opportunity.
He pointed out that different states introduced reservation ahead of elections and said decisions made out of political consideration should not make this court to revisit Indira Sawhney verdict. The senior lawyer further said that in 2000, the National Commission for Backward Classes (NCBC) had expressly rejected a request for including Maratha in the category of backward classes.
Datar said that this 50 per cent limit given by the 1992 verdict is a ‘Lakshman Rekha’ and it has to be followed by every state legislature in making reservations. He said that the 1992 verdict had made a very limited exception of 50 per cent cap, which was in the context of an extraordinary situation and involving far-flung areas for which extreme caution has to be exercised.
'Maharashtra SEBC Act unconstitutional'
He said that Maharashtra is not a far-flung area and is rather among the prosperous states and therefore SEBC Act of the State should be declared as unconstitutional. Datar added that BP Mandal commission in 1980 has declared Maratha community to be a forward community and the National Commission of Backward Classes found that Maratha’s are not a socially backward community.
Senior advocate Shyam Divan, also appearing for the petitioners, said that social and financial status of Marathas have been examined on various occasions till 2013 and each of the body found that they cannot be put in backward class category. His arguments remained inconclusive and would continue on Tuesday. The top court gave a week to all the states to file their brief written submission on the issue.
On March 8, the top court had framed five questions to be taken up by the constitution bench, including whether the ''Mandal verdict'' require a re-look by a larger bench "in the light of subsequent Constitutional amendments, judgments and changed social dynamics of the society". It had issued notices to all the states on issues of "seminal importance", including whether the 102nd amendment deprives the state legislatures of its power to enact a law determining the socially and economically backward classes and conferring benefits to them under its enabling power.
The issue of interpretation of the amendment cropped up before the bench, which is hearing a batch of pleas pertaining to the 2018 Maharashtra law granting reservation to Marathas in education and jobs.