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Thursday, April 22, 2021

Should judgment on 50% quota cap be referred to larger Bench? SC to decide

5-judge Bench refers to changes in social dynamics since Mandal

By: Express News Service | New Delhi |
March 9, 2021 4:30:28 am
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Nearly three decades after it capped reservations at 50 per cent in the Mandal Commission case, the Supreme Court on Monday decided to examine whether that historic verdict by a nine-judge Constitution Bench needed to be referred to a larger Bench in view of the changes that have since taken place in law and society.

A five-judge Constitution Bench headed by Justice Ashok Bhushan, which was hearing petitions on a Maharashtra law providing quotas for Marathas in jobs and admissions in the state, issued notice to all states seeking their views.

“Whether judgment in case of Indra Sawhney v. Union of India (the 1992 judgment popularly known as the Mandal judgment) needs to be referred to larger Bench or requires re-look by the larger Bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society etc”, the Bench — also comprising Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta, and S Ravindra Bhat — said, delineating the “broad issues” it proposed to answer in hearings over the coming weeks.

The Maratha quota law has taken the total reservation in Maharashtra beyond the 50 per cent ceiling imposed by the Supreme Court. Applying the Indra Sawhney judgment, which allows deviation from the 50 per cent rule only in extraordinary situations, a three-judge Bench of the top court had on September 10 disapproved of the law, saying “the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent”.

The court said on Monday that it will also consider another important question — whether the 102nd Amendment of the Constitution deprives a state legislature of the power to enact a law determining socially and educationally backward classes and to confer reservation benefits on them, “and thereby affects the federal policy/structure of the Constitution of India”.

“We are of the view that in view of the issues of seminal importance which have arisen before this Constitution Bench i.e., pertaining to interpretation of 102nd Constitutional Amendment, the States have to be given opportunity to have their say”, the Bench said.

The 102nd Amendment (2018) inserted Article 342A in the Constitution, empowering the President to specify socially and educationally backward classes in various states and Union Territories in consultation with the Governor of the state.

The September 10 judgment by the three-judge Bench had decided to refer the contentions regarding the 102nd Amendment to a five-judge Bench. It did not, however, agree to the demand to refer the Indra Sawhney judgment as well to a larger Bench.

On Monday, when the five-judge Bench headed by Justice Bhushan took up the reference, Senior Advocate Mukul Rohatgi, appearing for Maharashtra, argued that the principal question which has arisen for consideration is regarding the interpretation of the 102nd Amendment.

He said that the interpretation of Article 342A was going to affect the legislative competence of the States, as after the amendment, the State legislature had no competence to make any law with regard to reservations for backward communities.

Rohatgi contended that constitutional powers of reservation cannot be taken away from the legislative competence of the state, and urged the court to issue notice to all states and give them the opportunity to defend their legislative competence and to have their say on the 102nd Amendment.

Attorney General K K Venugopal said that “in view of the issues which have arisen, the State might be affected with the interpretation”, and hence the Constitution Bench may take this up too. He also endorsed issuing notice to all states.

Senior Advocate Arvind Datar was of the view that given the fact that the matter had already been fixed for hearing from Tuesday, the court should go ahead with the same and, if needed, issue notice in the course of the proceedings.

The Bench will also examine “whether the Maharashtra law…granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case”, and “whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M C Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved outin the judgment of Indra Sawhney”.

The court will hear the matter from March 15 onwards.

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