New Delhi, Mar 16 (PTI) The Supreme Court Tuesday observed if the argument that after 102nd amendment of the Constitution only Parliament can prepare one 'Central' list of SEBC is accepted, then Maharashtra law granting quota to Marathas’ cannot be passed as it would be beyond the state's legislative competence.
A five-judge bench headed by Justice Ashok Bhushan was informed by the petitioners opposing the Maratha quota that after the Constitutional amendment, the Socially and Educationally Backward Class (SEBC) can be determined only be the President. The bench, also comprising justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, was told by senior advocate Gopal Sankaranarayanan that after the amendment if the Constitution does not open that door for providing reservation to Marathas, then the state cannot open the window on its own.
He argued that after the Constitutional amendment, Maharashtra set up a commission and inserted Maratha community in the SEBC list and it needs to be seen whether that was permissible. During the day long hearing, Sankarnarayanan said that the majority judgment in 1992 Indira Sawhney case had rejected the idea that Other Backward Class (OBC) must be on par with SC/ST.
“The 102nd constitutional amendment sought to bring some kind of uniformity and cohesion in extending reservations to the backward classes,” he said, adding that now there is only one SEBC list, prepared by the Parliament.
The bench then observed, “If that argument is accepted, this law (Maharashtra law) cannot be passed as it would be beyond the competence of state’s legislature”. Sankaranarayanan said that when the Constitution was enacted in 1950, the reservation was only for SCs and STs and it was extended every 10 years but it still continues.
He said that the word “backward class” and “SEBC” have been interpreted many times and Indira Sawhney verdict had examined it in detail. He added that there are two aspects which arise from the 102nd amendments -- whether State Commissions for Backward Classes will continue or will they be subsumed by National Commission for Backward Class (NCBC) and what will be their role.
At the outset, senior advocate Shyam Divan resumed his arguments and said, that after 102nd Constitutional amendment, there is a specific procedure for identifying SEBC.
He said that after this amendment, under Article 342A of the Constitution, it is only the President, in consultation with the Governor, who can specify the SEBC list despite the state making provisions for their benefit.
“In this case, Maratha’s were given reservation but there was no presidential notification and no consultation with NCBC as required,” he said. The hearing remained inconclusive and would continue on Wednesday. On Monday, the petitioners opposing Maratha reservation law said that changing the 50 per cent quota cap for SEBC as fixed by the 1992 judgement, known as the Mandal verdict, will be like having a society founded on case and not equality.
They had opposed the revisiting the 1992 Indira Sawhney verdict by a larger bench of 11-judges. Petitioners including individuals and associations opposing reference to larger bench the question whether the landmark 1992 verdict in the Indira Sawhney case, which caps the quota at 50 per cent, requires a re-look have told the top court that right to equality is a meta right and is above all the rights guaranteed under the constitution.
On March 8, the top court had framed five questions to be taken up by the constitution bench, including whether the 'Mandal verdict' require a re-look by a larger bench 'in the light of subsequent Constitutional amendments, judgments and changed social dynamics of the society'.
It had issued notices to all the states on issues of 'seminal importance', including whether the 102nd amendment deprives the state legislatures of its power to enact a law determining the socially and economically backward classes and conferring benefits to them under its enabling power.
The issue of interpretation of the amendment cropped up before the bench, which is hearing a batch of pleas pertaining to the 2018 Maharashtra law granting reservation to Marathas in education and jobs. PTI MNL SJK SA