The issue of interpretation of 102nd amendment cropped up before a five-judge constitution bench headed by Justice Ashok Bhushan which was hearing the pleas pertaining to the 2018 Maharashtra law granting reservation to Marathas in education and jobs
Supreme Court of India. File Pic
The Supreme Court Monday sought responses from all the states on issues of "seminal importance", including as to whether the 102nd amendment to the Constitution deprives the state legislature of its power to enact a law determining the socially and economically backward classes and conferring benefits to them under its enabling power.
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The 102nd Constitution amendment Act of 2018 inserted Articles 338B, which deals with the structure, duties and powers of the National Commission for Backward Class, and 342A which deals with power of the President to notify a particular caste as Socially and Educationally Backward Classes (SEBC) and power of Parliament to change the list.
The issue of interpretation of 102nd amendment cropped up before a five-judge constitution bench headed by Justice Ashok Bhushan which was hearing the pleas pertaining to the 2018 Maharashtra law granting reservation to Marathas in education and jobs.
The top court, while issuing notices to all the states, said it proposes to consider whether the landmark 1992 verdict in Indira Sawhney case, also known as the 'Mandal verdict', which caps the quota at 50 per cent, require a re-look by a larger bench “in the light of subsequent Constitutional amendments, judgments and changed social dynamics of the society”.
The bench, also comprising justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, said it would commence the hearing from March 15 and granted liberty to states to file their brief notes of submissions on which they may rely during the course of hearing.
“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. We, thus, issue notice to all the states,” the bench.
The bench made it clear that the apex court would hear the states after hearing the lawyers appearing for Maharashtra.
“We also indicate the broad issues which this constitution bench proposes to consider. We are indicating these broad issues so that all concerned including states may be able to formulate their submissions and include in their brief notes,” it said.
The bench framed six questions, including as to whether Article 342A abrogates states power to legislate or classify in respect of 'any backward class of citizens' and thereby affects the federal policy or structure of the Constitution, which it proposes to consider.
“Whether the Constitution One Hundred and Second Amendment deprives the state legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?,” the bench said.
“Whether, states power to legislate in relation to 'any backward class' under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?,” said one of the questions framed by the bench.
The apex court said it would also consider whether the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act 2018, as amended in 2019, granting 12 per cent and 13 per cent reservation for Maratha community in addition to 50 per cent social reservation is covered by “exceptional circumstances” as contemplated by 1992 verdict in Indra Sawhney case.
The bench said it also proposes to consider, “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 out in the judgment of Indra Sawhney?”
The bench, while fixing the schedule for hearing in the matter, said no request for adjournment on behalf of any party shall be entertained on the next day of hearing.
It said that notices may be served on the standing counsel appearing for different states and be also sent by e-mail to the chief secretary of states by tomorrow.
During the hearing, senior advocate Mukul Rohatgi, appearing for Maharashtra, said the principal question which has arisen for consideration before this bench is interpretation of 102nd amendment.
Rohatgi said interpretation of Article 342A is going to affect the legislative competence of the state and they have to be issued notice and given opportunity to defend their legislative competence and have their say on the 102nd amendment.
Attorney General K K Venugopal, appearing for the Centre, endorsed the submissions for issuing notice to the states saying the states might be affected with the interpretation which the court may take in the matter.
The apex court had on September 9 last year stayed the implementation of legislation and referred to a larger bench the batch of pleas challenging the validity of law, but made it clear that status of those who have availed of the benefits would not be disturbed.
The SEBC Act 2018 of Maharashtra was enacted to grant reservation to people of the Maratha community in the state in jobs and admissions.
The Bombay High Court, while upholding the law in June 2019, had held that 16 per cent reservation was not justifiable and the quota should not exceed 12 per cent in employment and 13 per cent in admissions.
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