Updated: March 20, 2021 11:48:07 am
The Supreme Court Friday wondered whether it can be said that no development has taken place in the 70 years since Independence and that no backward caste has moved forward despite measures adopted by states for their welfare.
“Seventy years have passed since independence and states are carrying so many beneficial schemes. Can we accept that no development has taken place, that no backward caste has moved forward?”, a five-judge Constitution bench, headed by Justice Ashok Bhushan, asked Senior Advocate Mukul Rohatgi. The bench is hearing petitions against the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act that provides reservation to Maratha community in jobs and admissions.
The query came as Rohatgi, who is appearing for the Maharashtra government, pressed for a relook at the court’s nine-judge Constitution bench verdict in the Indra Sawhney case capping reservation at 50 per cent.
“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…”, said Rohatgi. He added that three decades have passed since the judgment and “…the law has changed, the population has grown, backward persons may also have increased”.
The bench, also comprising Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, remarked that the 50 per cent cap “is a manifestation of the right to equality” and wondered what would happen to the concept of equality if the ceiling is scrapped.
Justice S Ravindra Bhat asked Rohatgi, “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 will be Article 14 (right to equality)?… What about the resultant inequality? How many generations will you continue…?”.
Rohatgi replied that in the last 70 years, “we have not reached anywhere near our ideal goal”. “That is why the Constitution was amended (amendments to Articles 15, 16),” he said.
“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 we require for the backwards…The Parliament has stepped in to say what the government of the day is doing is not good enough,” he added.
Pointing out that the Indra Sawhney judgment came in the backdrop of the Mandal report, he said the intrinsic material of the report which is based on data 80, 90 years ago cannot be frozen in time. “The population has increased since then. This data cannot be considered.” He said he was not trying to say that the ruling is completely wrong in law but that a relook is needed.
Rohatgi said the 50 per cent limit was set by the court and is not stated in the Constitution.
Petitioners challenging the Maratha quota law had argued that after the 102nd Constitutional amendment, only the Centre has the power to identify SEBCs.