Maharashtra has the legislative competence for granting reservation quota to Marathas and its decision is Constitutional as the 102nd amendment does not denude a state of the power to declare its list of Socially and Educationally Backward Classes (SEBC), the Centre told the Supreme Court on Tuesday.
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 (NCBC), and 342A dealing with power of the President to notify a particular caste as SEBC as also of Parliament to change the list. A five-judge Constitution bench headed by Justice Ashok Bhushan was told by Solicitor General Tushar Mehta, appearing for the Centre, that in its view the SEBC Act, 2018, of Maharashtra granting reservation to people of the Maratha community in the state in jobs and admissions is Constitutional.
The Centre is of the view that the Maharashtra SEBC Act is constitutional. We construe Article 342A gives enabling role to Central government to determine the SEBC, Mehta said, adding that the Centre adopts the submissions of Attorney General K K Venugopal and it should be considered as the view of the Union government. On March 18, the AG had told the top court that the 102nd amendment to the Constitution does not deprive state legislatures to enact law determining the SEBC and conferring benefits on them. Mehta said that the Article 342A inserted by the amendment is an enabling provision and does not denudes the States of power to declare SEBC.
The bench however asked Mehta as to why no notification of SEBCs has been issued till date by the Centre under Article 342A as the President in consultation with the governor has to issue the list. Will you not make it a dead letter by not issuing the notification for all times to come? Doesn't it means that there is a blank slate as of now? the bench asked Mehta, to which he replied that the existing list of SEBC continues. In that case, the existing list of SEBC has to be a part of the Constitution Amendment Act itself, the bench said, adding that it is not clear as of now as to what will be the correct interpretation of Article 342A, and what will be the effect of not having a list. Mehta said that all these questions will be answered when the top court will consider the petition challenging the validity of 102nd Constitution Amendment.
The bench said it will hear the submission of Mehta again on this aspect when those petitions are considered. Mehta replied that if the court holds that states are not denuded of power to issue SEBC list after the 102nd amendment, then it may not have to address the question as the amendment act is challenged on the ground that it has taken away the state's power to issue SEBC list.
He said that he would file a written submission to answers various questions on the issue. Senior advocate Manish Singhvi, appearing for the Rajasthan government, said that the determination of SEBC in each state for subject matter(s) covered by List-II and is sole prerogative of the concerned state government. He said the 1992 Indra Sawahney judgment (also called the Mandal verdict) put cap of 50 per cent on reservation and hence it requires re-consideration by a larger bench. Advocate Manish Singh, appearing for the Bihar government said that since 1993 there are two separate lists of SEBC — one prepared by the Centre for central services and the other by state for state services. In relation to Bihar the Central list contains 136 castes and State list has 174 castes, for grant of reservation, he said, adding that the affirmative action by Bihar at its own resources, is to be decided by the state and taking away that power would be against the federal structure mandated by Constitution. He said that interpretation of 102nd amendment cannot be made to defeat or limit the legislative powers of the States and 1992 verdict needs to be referred to a larger bench and requires re-consideration in light of changed social dynamics of the society.
The arguments in the case remained inconclusive and would resume on Wednesday. On Monday, the top court had said that states should take more steps to promote education and establish institutes for the upliftment of SEBC as affirmative action is not limited to just the reservation and several other things can be done by for this purpose. The top court had earlier sought to know for how many generations would reservations in jobs and education continue and had raised concerns over resultant inequality in case the overall 50 per cent limit was to be removed. The apex court is hearing a clutch of pleas challenging the Bombay High Court verdict which had upheld the grant of quota to Marathas in admissions and government jobs in the state. It 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 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.