After nearly three decades of the Indra Sawhney judgment, the Supreme Court said on Monday that the 50 per cent cap on reservation laid down by a nine-judge bench in 1992 could be re-examined in view of the subsequent constitutional amendments and the socio-economic changes that followed.
The top court posed six queries while hearing a batch of petitions challenging the constitutional validity of the Maratha reservation. The Constitution bench headed by Justice Ashok Bhushan said: “Does the judgment in the case of Indra Sawhney vs Union of India needs to be referred to a larger bench or require re-look by the larger bench in the light of subsequent Constitutional amendments, judgments and changed social dynamics of the society etc.?”
Senior advocate Mukul Rohatgi, representing the Maharashtra government, submitted that the principal question which has arisen for consideration is interpretation of the 102nd Constitutional amendment.
He added that the interpretation of Article 342A is going to affect the legislative competence of the state since the submission which was pressed by the writ petitioners in the high court was made after the 102nd Constitutional amendment by inserting Article 342A. Tthe state legislature has no competence to legislate with regard to reservation of economically and socially backward communities.
“Constitutional powers under Articles 15 and 16 cannot be taken away from the legislative competence of the state,” argued Rohatgi.
Attorney General K.K. Venugopal agreed with Rohatgi’s submission that all states should be issued notice in the matter.
Issuing notice to all the states, the bench, also comprising Justices L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta and S. Ravindra Bhat, said: “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 top court said that it will begin day-to-day hearing in the matter from March 15.
The bench said it will consider the query: Whether Maharashtra State Reservation (educational institutions 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 Constitution bench in the Indra Sawhney’s case.
The top court added: “Whether the 102nd 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?”
On December 9 last year, the top court had refrained from modifying the stay order in implementing reservation for Marathas in job and education in Maharashtra.
The petitioners have challenged the Bombay High Court judgement passed in June 2019, which upheld the Maratha quota, where it ruled that reservation should be 12 per cent in jobs and 13 per cent in education.
The petitioners contended that the Act violates the principle laid in the nine-judge bench judgement of the apex court in 1992, which had capped the reservation at 50 per cent.