The Supreme Court’s five-judge Constitution Bench on Monday issued notices to all states for their response whether reservation could be allowed beyond 50 percent to the backward classes while hearing the Maratha reservation matter challenging the Bombay High Court order which upheld reservations for Marathas in jobs and education under the Maharashtra Socially and Educationally Backward Classes Act 2018 (MSEBCA).
The bench comprising Justices Ashok Bhushan, L. Nageswara Rao, Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat framed four broad questions for consideration which are:
- Whether the judgment in the case of Indra Sawhney needs to be referred to a larger bench in view of the amendments made to the Constitution.
- Whether reservation of seats more than 50% to the backward classes of the Maratha community is in line with Indra Sawhney judgment.
- Whether 102nd Amendment deprives the state of its power to legislate or provide for reservation.
- Whether Article 324-A affects the federal policy of the state.
The bench said that the notice will be issued to the states through their counsels and the states have been directed to file their brief note of submissions. The bench adjourned the matter and said the hearing will commence from March 15.
Senior Counsel Mukul Rohatgi, appearing for the state of Maharashtra, submitted, “The principal question in the matter was 102nd constitutional amendment. Moreover Article 324-A is going to affect the legislative competence of the states. This is a case where all the states have to be heard on their legislative competence.”
Senior Advocates Kapil Sibal and P. Patwalia concurred with Rohatgi while Senior Advocate Shyam Divan insisted that the matter be heard on merits without delaying the matter further.
The bench was of the view that the states must be allowed to have their say as the issue involved the legislative competence of the states.
A three-judge bench of Justices L. Nageswara Rao, Hemant Gupta, and S. Ravindra Bhat had referred the matter to a larger bench of 5 or more judges and the case was placed before the CJI for necessary orders.
The Supreme Court had on July 27, 2020 refused to pass an interim stay on the Maratha reservation issue till September 1, 2020 after getting assurance from the state government that no recruitment will be made till September 15. The court had decided that it will first examine whether the issue should be referred to a constitution bench. The matter pertains to the Socially and Educationally Backward Classes Act 2018, introduced by the Maharashtra government that grants 12 percent reservation for the Maratha community in education and 13 percent quota in appointment to public service jobs in the state.
The Act was introduced with the purpose of extending reservation benefits to the Maratha community. The Act originally provided a 16 percent reservation to Marathas in public service jobs and education in the state. Later, it was challenged before the Bombay High Court which upheld the validity of the law but reduced it to 12 percent in admissions and 13 percent in jobs. Thereafter the state government amended the act accordingly.
A batch of 15 petitions has challenged the law on the ground that it breaches the 50 percent reservation threshold prescribed in the landmark judgment rendered by the Supreme Court in Indra Sawhney in 1992.
The bench on the previous occasion after having regard to the submissions made by parties that they were facing difficulties in communicating with clients sitting in Mumbai sought physical hearing in the matter. The bench accordingly listed the matter for hearing in March.
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