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Day 6, Maratha quota case: Supreme Court says affirmative action is not just reservation

The Supreme Court has been hearing a clutch of cases challenging the Bombay High Court verdict which upheld the grant of quota to Marathas in admissions and government jobs in Maharashtra.

On the sixth consecutive day of the hearing in the Maratha quota case, a Constitution Bench of the Supreme Court made observations regarding the need to move beyond reservations for the purposes of affirmative action.

While hearing, the Senior Advocate Paramjit Patwalia continued his arguments and stated that as far as Mumbai is concerned, public hearings were first held at CBT, Belapur and Thane on July 13. After hearings were concluded, a large number of representations were left which took place at an office in Mumbai. As per the senior advocate no criticism or complaint was being prevented as it was an open and transparent process.

Advocate Patwalia also submitted that the reservation was first challenged by one Sanjeev Shukla who runs the NGO named Youth for Equality which also challenged reservation Economically Weaker Section of the society.

The bench asked if there was so much publicity then why were there no objections from current OBC and general category regarding the increase in the reservation? The court also added that people may not be aware about the fact that whether the reservation is in addition to or part of reservation. The court then exclaimed that we are only saying that we can reasonably assume that persons from OBC who thought this Maratha quota would be to their detriment, they would have opposed.

Advocate Patwalia stated that open category people are not coming up for this; commission is helpless regarding the matter. When a rally happened in Mumbai, the entire city was on hold. He responded that there were protests in Maharashtra and sufficient publicity was given. Patwalia while reading from his written statement, read a report of Gaikwad committee and stated that the committee never said Maratha quota should be a separate quota, which the committee ultimately recommended. How those already in OBC were to know? He added that he wants to challenge the notion that it was “packed with Marathas”. Patwalia then cited the details about the Gaikwad committee and named the members of the committee, Justice Gaikwad (Judicial Member), Chandrashekhar Deshpande (Scientist), after reading their credentials, points out that ‘He is a Brahmin.’ Patwalia added that he doesn’t feel comfortable at all saying this. Patwalia argued that the Gaikwad committee has adequately considered all earlier commissions’ reports. It clearly shows why earlier reports would not hinder the finding that Marathas can be considered as a SEBC.

Advocate Patwalia also added that the state set up a state commission, which did not find Maratha as SEBC therefore all these protests, took place. The Kalekar commision identified Marathas from Marthwada and Kunbis from Vidarbha as backward class but the government didn’t recommend it. The High court also examined this, though no counsel referred to this part. A detailed chart is produced in the written statement showing why these commissions in the past didn’t recommend Marathas into backward class. Advocate Patwalia also argued that the first circumstance was that the proportion of the population entitled to Maratha Reservations is too huge, and the quota available was too small. All intermediate caste was in category of OBC, except Marathas although they were part of this caste system.

Advocate Patwalia stated that after the state accepted the report, it was unanimously passed in both the houses of the state. The reservation would have been completely illusory if the 50% capacity was followed in this case. In order to avoid that, it found that it is an exceptional circumstance to increase the reservation beyond 50%. While reading from socio-economic Caste census conducted by Rural Development Department, Patwalia added, Marathas were deleted from OBC and were added in forward open category.

Justice Hemant Gupta said that the majority view is 50% can be crossed only in exceptional circumstances. Three judges said it cannot be crossed at all. To this, Patwalia stated that Indra Sawhney does not say 50% cannot be breached at all. \

The Bench commented that the 2014 act was challenged in Bombay High court, on this, Patwalia replied that those WPs went on to become infructous. The bench then stated that the state never acted on that amendment and no notification was published even when it has been almost 2 and half years. 

Advocate Patwalia argued that the 2014 Act creates reservations to SEBC and then it identifies Marathas as an SEBC. Even if the identification is struck down, the power to create reservation cannot be struck down. Identification is an issue but creation is not. The court should keep in mind that in cases like these, it is the subjective satisfaction of State government which the court is putting to scrutiny.

Senior Advocate Shekhar Naphade begins his submission and states that he is only supplementing to what was said earlier by Rohatgi. Balaji is a route from where we get 50% reservation. As per me Balaji was not being correctly decided to which the bench said that Rohatgi already submitted these arguments. Advocate Naphade argued that he has a different angle. He said finding that reservation cannot exceed 50 % is obiter dicta and not the ratio. Reasonableness regarding limit on reservations cannot be decided based on abstracts as was done in Balaji case.

Naphade then stated that by rejecting Gowda committee report, the court took over the functions of the government. It is not for this court to sit in review over the same and no judicial review can be exercised over subjective satisfaction of govt on such issue. My submission is that it is not clear from the judgment how the court arrived at the figure of 50% and the same should be referred to a larger bench.

Senior Advocate Kapil Sibal started arguing on behalf of State of Jharkhand regarding the aspects of Indira Sawhney case while reading past two orders where it was observed that, Indira Sawhney case did was to take the SEBC in all the list of the state and fix the percentage at 50, common for all states and mandal commission was never an issue in the case. Validity of the government order never went to the court to decide. Sibal argued that a government order should never be argued in vaccum. Social dynamics of society can’t be addressed until we see the statistics. Some states have more backward population, some may have less. So it is on state legislature to decide.

Article 15 deals with empowerment with getting eligibility for a job while Article 16 deals with employment with getting a job once the person becomes eligible. The dynamics of both Articles are different.

The bench asked, you talk about the issue in Maharashtra. Sibal then argued that I am here to talk about the constitutional aspect and not the state of Maharashtra. Will Bihar having more than 60% of Backward Class people apply the same formula in Indra Sawhney as Assam having nearly 30% backward class? These are data of OBC. The vision and the concept of equality would differ. It differs from one state to another.

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Justice Ravindra Bhat said, access not only means caste. It could mean there is not enough number of seats or institutions. All of them want to but there might not be enough seats. After Sibal cited the data from different states the bench asked, ‘The data you have mentioned, does the government made this? No it is from ministry of social justice, said Sibal. Justice Bhat replied that here census for 2011 is written. The Centre does not take out the data class wise. Sibal reiterated that this is government data from the handbook of social welfare and statistics.

My lord what I am trying to show is extent of reservation would differ from state to state depending on population, therefore there can’t be a straight formula. Concept of Gross Enrollment Ratio i.e. total number of people entered into a school and then dropped out, in other words when you jump from class 8th to 10th, there is a 60% fall. When you reach higher class like 12th it’s only 24.5% i.e. almost 75 % drops out before reaching to college, said Sibal.

The bench then stated that this thing applies all over the world. This applies to all categories, there are other possible reasons. It may be aspiration issue, all of them want to but couldn’t due to lack of seats, access etc. Sibal then stated that my lord I’ll come to that, it’s just the genesis. As per World Bank data, according to me difference between a developed country and less developed country is the lack of GER and not the GDP. It is not a global phenomenon.

Sibal have also cited figures of developed countries. The GER in higher backward class states is 13.7 in Jharkhand and 15.2 in Maharashtra. He argued that why do we have Kendriya Vidyalaya schools? It is 100 % for the government servants not 50% and there is nothing wrong with that. Similarly, Navodya Balika Vidyalaya is a school for girls only, for advancement of women and there is nothing wrong in that.

Justice Ravindra Bhat asked that why not promote education, establish more institutes. Somewhere this matrix has to move beyond reservation. Affirmative action is not just reservation. There has to be something more.

Sibal replied, Indra Sawhney, majority rejected the Mandal Commission report, the government of India also didn’t accept the report but they said because the caste set out in the various reports are caste which are common in list of UOI. The court in Indra Sawhney was only dealing with OM where reservation was less than 50% and not Mandal Commission report. I can’t say more, it is quite clear that court was only dealing with memorandum given by state and not in reference of Mandal report. What happened in Mandal was survey happened in two villages and one urban block in each district which is not even one percent of population.

The bench comments that the Mandal commission report has been accepted to some extent. To this, Sibal said no, Mandal has not been accepted and state lists have been accepted which was accepted by Mandal. Nothing more has been accepted in Mandal. What’s the principle? Unless you have data, statistics, you can’t fix percentages. And Indra Sawhney had no data. A large number of castes were picked up from State lists.

Advocate Sibal then asked why should Indra Sawhney be taken as the gospel truth for fixing percentages in the absence of data? Further, on the underlying need for data, statistics in deciding whether the principle of equality has been violated or not.

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While concluding his submissions for the day Sibal said, he agrees to the extent of the 27% reservation for OBCs. However, he argues that this is not so for extending reservations beyond 50%. If the state today says the situation requires beyond 50%, that’s not been decided by Mandal Commission.

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