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The SC bench is headed by Justice Ashok Bhushan comprised Justices L Nageswara Rao, S Abdul Nazeer and Hemant Gupta. The Supreme Court Monday wondered why affiramtive action should be limited to reservation and not include measures like promotion of education and establishing more institutes for uplift of backward classes.
“Why stop at reservation? Why can’t other things also be done? 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,” Justice S Ravindra Bhat, who is part of the five-judge Constitution bench hearing the challenge to the Maharashtra State Reservation for Socially and Educationally Backward Classes Act, which provides reservation to the Maratha community in jobs and admissions, said.
The bench headed by Justice Ashok Bhushan, and also comprising Justices L Nageswara Rao, S Abdul Nazeer and Hemant Gupta, is also considering if the 1992 Indra Sawhney case verdict by the nine-judge Constitution bench capping the quota limit at 50 per cent needs to be sent to a larger bench for reconsideration.
Justice Bhat’s remarks came as senior advocate Kapil Sibal, defending the Maharashtra law, said that the court cannot tell the government that reservation can only be 50 per cent. “Suppose the government gives 70 per cent reservation; the court can strike it down saying it was not done properly. But the court cannot tell government that it can only be 50 per cent,” he argued.
On the court’s query about promoting education and educational facilities, Sibal said it would involve issues such as financial resources of the State, ability to establish schools and find teachers.
He said, “Your Lordships have to leave it to States and the Centre with regard to how to take affirmative action and the way forward.”
The Indra Sawhney case was decided in tumultuous times, Sibal said. He said it was decided at a time when the nation needed peace and tranquility. It was not a judicial exercise but a balancing act to put quiet to the tumult, he added.
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