The Supreme Court is hearing the petitions challenging the validity of the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, which had extended a 16% reservation for the Maratha community.The Court has also decided to hear all States in the matter, after a question of whether the Indra Sawhney case should be reconsidered cropped up. This case puts a 50% cap on the reservation permissible for backward classes.Final hearings in the matter had commenced on March 15.To read accounts of the hearings on Day 1 and Day 2 click here and here. To read Day 3 arguments, click here. Attorney General KK Venugopal completed putting forward his views on the issue on Day 4. Read an account of Day 5 here, an account of Day 6 here and an account of Day 7 here. An account of yesterday's hearing can be read here. Live updates of the hearing today feature here..Pingle says that an endeavour should be made to remove caste-based reservations in a phased manner because caste is politicising the issue..Pingle speaks of how caste is being politicised, he argues that Indra Sawhney, for good or bad, recognised caste as a ground for extending reservations..Pingle: I think the elephant that needs to be addressed in the room is caste..Pingle: I am taking clue from EWS reservation....Justice Ashok Bhushan: That is for parliament and legislature. It is a welcome idea... When the Constitution was enacted, the object was a caste-less, egalitarian society..Court: Your thoughts are very radical and good. But it is for the Government to take a decision that caste and reservations should go..Pingle: My proposition is this. 50% may not be required to be crossed in Maharashtra in absolute terms. I am supporting the State, it may be a little confusing at this stage, but let me clear the picture.Pingle: It is interesting to know what happened in Maharashtra after Indra Sawhney case. After Indra Sawhney, there was a demand in 1993 to include Marathas in 1993. The State of Maharashtra came up with a GR.Pingle speaks of a GR whether "the entire caste as a basis, including for SC/ST/OBC was removed" for reservations, "which was good for 5 years until it was struck down in 1984.".Court: Mr Pingle you may be right. This may be a beginning, all reservations may go and only EWS may remain. But these are policy matters..Pingle: 50% may not be required to be crossed in Maharashtra in absolute terms in providing reservations to Marathas. GR.. .Court: This GR is from '64, much water has flown. It is not more operative .Pingle: It is operative.Court: Now Act has come, everything will be governed by the Act.Pingle submits on how reservations were earlier increased by a GR to 80% at which point the OBC reservations remained at 14%, that the Court can rationalise the percentage of reservations make it adequate and not proportionate, on the transfer of some petitions from HC.Pingle: Maharashtra is the only state where the Mandal list was used to include caste, which does not exist in Maharashtra. This GR - we are in '95 after Indra Sawhney - 100+ castes are included....Court: We are not concerned with identification, the inclusion, exclusion of caste in any state list. These issues are not before us, whether 100 castes were wrongly added..Senior Advocate V Shekhar: How my learned friend is arguing in a petition which is pending before Aurangabad Bench in Bombay...? .Court: Mr Pingle, try to be brief, you are going beyond ....Pingle: Over 30 years have passed after Indra Sawhney. A case of this magnitude does not come often. If mistake happens, generations will suffer. I am trying to bring to your Lordships... a holistic view may be taken..Pingle: Over-reservation is anti-reservation. .Pingle: Since this case has a larger magnitude on the social life of the country, it may be appropriate to consider all the cases pending and take a holistic view..Pingle: Bombay High Court while pronouncing this judgment has followed Indra Sawhney completely..Pingle submits that Maratha reservations were already given earlier in 1902, 1925, supported by Ambedkar in 1919 and that it was given in constituencies..Pingle submits that it is shown that Kunbis and Marathas are identical..Pingle says that certain annexures have not been placed before the Court because it would show the closeness of the Maratha community with OBC is so much that State fears that reservation beyond 50% is not sustained, the community will demand its inclusion in OBC..Pingle adds: That has already happened, there are cases pending .Court: The State has already made its submissions. Whatever submissions you have to make, please make... all the paragraphs have been read. .Pingle: No, no, page 23 is important milord..Court: What is the point you are making? we have been asking you for half an hour. You are talking about Maratha history .Court: Please deal with one of the question of the seven questions. There is no point going on like this. We have already given half an hour to an intervenor.Pingle goes on to argue that there are new parameters to be considered - educational power, power of selective professions, power of nationality, nationally important institutions etc. .Court: Okay, we will go through your written submissions.Biju: In my experience, I hav always heard from the Constitution Bench, 'don't repeat anything .Biju says he has answers on new points..There is no necessity to refer the Indra Sawhney case to a larger Bench, Biju submits. .Within the purview of Indra Sawhney itself, the Court can decide the matter including the consequences of the legislation, he adds..Biju, in his submissions, speaks of how politicians will only say 'we will give reservations', that earlier arguments only speaks of inclusion and not of those already uplifted..Biju: Kindly see the present-day situation... The "changed social dynamics" - I am relying heavily on this. What is the changed dynamics? In 1950, the majority of people were under poverty. Now it is uplifted....Biju: Merit is always side-lined and caste reservation is always coming up...See the law of marginal utility...diminished marginal meritocracy is very serious....Biju recalls that case law has stated that reservation is not a fundamental right. He argues that reservation affects merit. .Biju: If an MBBS doctor is not properly qualified, then it will be affecting the people.. that will affect the children, the society..The concept of Constitutional equality cannot be used to commit another wrong, Biju reads. .Biju: This is what is happening in every state.Court refers to another portion of the judgment read: What is this "negative equality" .Biju says he will come to it..Biju refers to Article 338B, Article 342A, inserted by the 102nd Constitutional Amendment..Biju: It (Article 342A) never said from "the list", only from the "central list", which means that the Centre did not touch the State list..Biju: My submissions are very clear. There is no need to refer the Indra Sawhney to a larger Bench because of 13 Bench in Keshavanadha Bharathi said, first you touch the legality of the law.Biju: ... coupled with the consequences which have happened in the state, in the Sanjeev Shukla case - that is how people took law and order into their hands..Biju: With the greatest respect, if this (Gaikwad) commission report is going to accepted, in every State, hundreds of communities will come, hundreds of this type of law and order situation will be there, protest marches will be there.Biju: The consequences of the law enacted by the Maharashtra Legislative law must be tested first on Keshavanandha Bharathi judgment..Biju: One more thing, according to me - I may be right or wrong - commission after commission - there are two judgments of the High Court, a judgment of the Supreme Court - on the same issue..Biju: After 2014, until 2019, how this much social backwardness happened to Marathas, no one knows. What about the Rane commission?.Biju: This practice may not be accepted or encouraged when community leaders or political leaders can come in this way. My Lords have every power to test if it is legal.Advocate Hrishikesh Chitaley makes submissions for intervenors who were appointed between 2016 and 2018 when there was a stay on the 2014 ordinance and the 2015 act..Advocate Kaleeswaram Raj makes submissions. .Raj: Balaji case said in clear terms that the rule which Balaji laid down is not a hard and fast rule. It was reiterated in Indra Sawhney. It is more a rule of prudence and caution..Raj: The very idea that there is a hard and fast rule, a 50% ceiling is antithetical....Raj: I am appearing in the 103rd amendment challenge as well. Those who are beneficiaries of communal reservations are challenging the 103rd amendment relying on Indra Sawhney... (1/2).Raj:...This is the beauty of the prudence in Indra Sawhney. That strikes a balance. That balance is required to be balanced (2/2).Raj: Indra Sawhney clearly stated that clause 4 of Article 15 should be reasonable and cannot exceed the prohibition in Article 15 (1).Raj: Everywhere - in cases of Devadasan, Chitra Lekha, Thomas - between all these cases, one cardinal argument was ... it exceeded the 50% limit. In all these cases, we need a contextual application of Balaji that was arrived it.Raj: "Reasonableness of reservation, balance, prohibition" - these were the phrases used in all the judgments....Raj argues that reservations have to be on a case to case, context-based, state to state examination..Raj submits that there is reasonableness and flexibility inherent in the Indra Sawhney and Balaji cases. .There is no requirement for reconsidering the prudent ruling in the Indra Sawhney case, which also has an effect on the 103rd amendment (EWS), he says. .Advocate Prashant Kenjale, for an intervenor: Wherever there was a need, Parliament has laid down a percentage. There was no need for the Court to interpret....Kenjale: If 50% is the bar not laid down by Parliament, can unequals be treated as equals? If there are 80% backwards in an area, if 50% is the bar, that remaining 30% will have to compete in the open category. That will be a breach of the Constitution..Advocate Akash Kakade refers to a TISS report on suicides of farmers in areas of Maharastra between 2011 to 2017, published in 2018..Kakade submits that the survey found that 65.8% of those who died by suicide were from the Maratha community, of which only 7.3% were graduates or postgraduates and 86% were physically fit.. He argues that this shows exceptional circumstances..Advocate Ashok Arora makes submissions for certain students, who had been given recommendation letter, says they may be time-barred from applying if not granted relief..Senior Advocate Paramjit Patwalia says State supports them, says that in such cases where the process is complete, only appoint letter is pending may be treated separately.Advocate Amol Karande is now making submissions..Karande reads from the judgment in Kesavananda Bharati .Court: Mr Karande, you take the Minerva Mills case, where Justice Chandrachud has summarised the judgments including Justice...in Kesavananda Bharati. That will be easier... instead of going into all these pages..Court acknowledges that it has been laid down federalism has been held to be part of the basic structure of the Constitution. .Karande continues reading from Kesavananda Bharati case..There are certain entries in the Constitution that empower any State to legislate for educationally backward persons, Karande submits..Karande seeks to read from the Indra Sawhney case. .Court notes that in Indra Sawhney, there was no issue over State getting powers to identify backward classes. The question is whether Article 342A (inserted by the 102nd amendment) changes the regime, Court says..Karande submits that only "Central" list is included in Article 342A, there is no issue there, but the issue is with Article 366 (26C)..Karande reads the definition of "socially and educationally backward classes" under Article 366, says that this definition is SEBC "for the purposes of this Constitution", which would include Articles 15 and 16. Therefore, States powers are taken away, this is the issue..Karande argues that Article 366 (26C) requires some clarification. .Note: Advocate Amol Karande is appearing for the petitioner challenging the 102nd Constitutional amendment, which inserted Articles 338B, 342A, 366 (26C).No list has been notified under Article 342A after the 102nd amendment, there is no clarity, Article 366 (26C) makes the issue complex as it applies to SEBC "for the purpose of the Constitution", Karande submits..Court observes that Karande is assuming 342A is only on Central List. 342 also talks of a list in relation to States and UTs under one of the clauses, Court observes..The court notes that State's inputs are also sought for the list under Article 342A. .Court: if it is only for the purposes of the centre, why do you need such intense inquiry?.Karande refers to Indra Sawhney case, on aspects concerning identification of backward classes by State..Karande argues that there should be two lists. .Karande: There are certain categories in Maharashtra that are in the State list and in the OBC list of the Centre..Karande: Even after the 102nd amendment, Mahaarashtra is having the power to enact SEBC Act. .But if your Lordships are of the view that power of States are limited after 102nd amendment, in view of 342A and the definition clause in Article 366, that requires some clarification..Advocate Diksha Rai makes submissions for the State of Assam. .She makes submissions on the percentages of reservations in the State. Inter alia, OBCs have 27%, EWS is 10% in excess of 50%, she informs..Rai: The State has certain positive constitutional obligations. Even if it is presumed Article 342A is unitary, the Court is requested to read it down harmoniously so that State can continuing carrying out its positive Constitutional obligations. .Rai concludes..Divan reads from written submissions, says Indra Sawhney need not be reconsidered, 50% limit should be retained, we are more equal now than we were 70 years ago and the focus must now be on other forms of affirmative action..Divan argues that if the 50% limit is breached, there will be political pressure not to reduce reservations, that reservations must be reduced with economic progress, that in democracies, which is a part of basic structure, there is a competitive element in elections..Divan: ... once the 50% limit is breached, it will become almost impossible to backslide.Divan: Constitutions and constitutionalism are about balancing. The essence of 50% rule is that it balances between aspirations of different elements of society and balances the interests of those who are not gaining from reservations..Divan: The (Maharashtra SEBC Act) legislation really ought to be struck down for having breached the 50% limit and having no real justification. The Gaikwad committee material is really not adequate material. .Divan concludes..Sancheti reads from submissions. He points to details on the representation of Marathas in political positions, banks, cooperative institutions, State agricultural marketing board, sugar factories etc..Court: So, therefore, you can say this is not only political domination, but dominance in other fields also. .Sancheti agrees..Sancheti argues against the contention that only because Marathas are politically forward, it would not mean they are not socially and educationally backward. .Sancheti: The contention that Marathas are only dominant in the political field is not correct..Sancheti refers to statistics indicating that Marathas comprise 40% of posts filled in the open/general category in a certain field. .Sancheti: That itself is enough to show that there is an adequate representation..Sancheti: When they argue, they say see this representation in the context of a population of 30%...They have data of rural Maharashtra population which shows it is 26%.Sancheti: Their own case is Marathas live largely in rural areas and less in urban areas. So the Maratha population has to be below, 26%, never 30%.Sancheti: If you follow this marking pattern, everybody is backward. Even the so-called open category would be backward..Sancheti: If you look at backwardness in the manner they (Gaikwad Committee) have done, then everybody is backward..Sancheti: Even this marking system, which they says shows some objectivity, with the greatest respect, is not correct..Sancheti makes submissions on "backwardness per se." .Sancheti: They have awarded marks out of 25 and based on marking system they claim that (Marathas) are backward..Sancheti: A reference was made to different classes like dabbawallas, slum people being backward...They will be backward as a group, as a class - not Marathas out of that. That is not a consideration for saying that Marathas are backward..Sancheti: Why is that the State makes a reference only in relation to the Maratha community?.Sancheti refers to the Indra Sawhney case. .Sancheti: The objective seems to be that you cover the entire populace... you first evolve the criteria for backwardness and then study (the entire population)...You can't, time and again, refer whether Marathas are backward or not.Court refers to submissions made on the poor living conditions of Marathas. .Sancheti: They have possibly gone to the most backward areas of the State. (If that is the case) even the open category has the same results. They why are other people not "backward"?.Sancheti: In the marking system, even the open category would get the same result as Marathas - below the State average..Court asks if Indra Sawhney gives some method of sampling and conducting survey to identify backward classes..Sancheti: The survey must cover the entire population and it must cover all castes and groups.... we are talking about relative backwardness within the State. .He adds that backwardness is a relative concept, not an absolute concept..Sancheti concludes .Patwalia: Mr Sancheti has referred to all fresh points. .Court: He was showing us from the report, there is nothing new .Patwalia: He wants to dictate how report must be interpreted .Court: Alright, we will give you some time to reply, if you want to reply.Patwalia: Your Lordships may give me a day or two, we will put written submissions .Court allows Patwalia to file written submissions .Pingle seeks to make a submission in response to Sancheti's arguments. .Court: Mr Pingle, this is not a panchayat... we have already heard you..Sankaranarayanan refers to an Abhijit Sengupta report, which is based on NSSO data..Court notes that it already has the latest NCBC guidelines on how to sample, conduct a survey, some of which were followed by the Gaikwad committee. Court remarks that this may be the way out..Sankaranarayanan: If federalism were to be part of the basic structure in a quasi-federal structure... .Court: In view of previous judgments, you can't say that federalism is not a part of the basic structure. .Sankaranarayanan: I am not saying that.Sankaranarayanan: The point is that we have to draw contours of the basic feature and then decide if the challenge falls within those contours..Sankaranarayanan refers to six cases that involved "a basic feature challenge" which Court allowed: Keshavanadha Bharathi, Indra Gandhi, P Sambamurthy, Chandrakumar, Minerva Mills and the NJAC judgment.Sankaranarayanan submits that in all six cases, the principles on which the constitutional amendment was struck down are exclusion of judicial review, free and fair elections, independence of judiciary being affected.Sankaranarayanan argues that if today the Court is called to look into a Constitutional challenge, it has to consider - does the insertion of 338B, 342A, 366(26C) upset the gentle balance between the state and the centre?.Sankaranarayanan argues on whether the 102nd amendment takes away any entitlement that the State had from Day 1 .As far as SC/ST are concerned, Centre always had power to identify. For backward classes, it is after Indra Sawhney that the States were asked to identify, he submits..Sankaranarayanan: What the 102nd amendment does is correct a historical error and retain a balance that has always existed for the other two classes. Otherwise, within the same Constitution, we are creating imbalances..Court: Learned AG has submitted that the Parliament never intended to upset the State's power of identification... How can you say this is restoring a balance?.Sankaranarayanan: When the Constitution was enacted, the backward classes that were given a right were SC/ST, which is why Articles 341 and 342 said that the President would identify them..There was no question of State identifying them at that point, he notes. Sankaranarayanan: Those same lists hold true for any measures that are extended under Article 15 and 16..Sankaranarayanan: When Articles 15 and 16 got operationalised for SC/ST, the same lists existed.. the backward class operationalisation came at a much later stage at the central level. It happened earlier in the States.Sankaranarayanan: The error is not in the Constitution makers, because they did not lay down who those backward classes were - because they were not sure who they were and whether it would be operationalised..Sankaranarayanan: Today the Constitutional amendments provide the same balance .Court: Why was there a need for this? Why this sudden need to unify them (the lists)? Why all of a sudden in 2017...?.Sankaranarayanan: My guess... as Dr Dhavan said.. repeatedly we have had caste groups ... all blocking roads, causing violence and State governments are put to sword...This kind of terrorism and civil strife is perhaps why the Parliament feels it is best to centralise..Sankaranarayanan: This is only the guess that I can hazard..Sankaranarayanan: Article 342A makes it clear that we are going to have only one list. They could have easily omitted the word "Central", but that would be a grammatical argument..Sankaranarayanan: .... there is no doubt at all that we are referring to one list and that list is the one we customarily refer to as "Central" list and there are no others..Sankaranarayanan asserts that now, defining who "socially and educationally backward classes" are would be left to the President, in consultation with the governor.Sankaranarayanan reads from Maharao Sahib Sri Bhim Singhji v. UOI. "But to permit the Bharati ghost to haunt the corridors of the court brandishing fatal writs for every feature of inequality is judicial paralysation of parliamentary function....".Sankaranarayanan continues reading the judgment : "...I have no doubt that the strategy of using the missile of 'equality' to preserve die-hard, dreadful societal inequality is a stratagem which must be given short shrift by this court...".Sankaranarayanan counters the allegation that the 102nd amendment violates basic structure (federalism). Argues it is not as if such a challenge can be allowed only for a "peripheral effect" on the federal structure..Sankaranarayanan adds: It (a challenge to the constitutional amendment) has to be so extreme and unconscionable to shake the basic structure. Does this amendment do that? No.Sankaranarayanan says that he disagrees with the views of Attorney General KK Venugopal that States would be left with powers to fix reservations even after the 102nd amendment..Sankaranarayanan: (After Article 342A) There is one list. "Central" usage is to re-emphasise, clarify and get around Indra Sawhney.Sankaranarayanan argues that there is no need to disturb the Indra Sawhney ruling or the 50% limit on reservations. He says that there are High Courts that have consistently applied the 50% rule.Sankaranarayanan argues that if at all, it is only the Executive that has misunderstood the rule. .The government has breached 50% to extend an olive branch to placate various groups, "which is why the Courts have to intervene on so many cases", he adds..In Rajasthan, they pass a law, it breaches 50%, the High Court strikes it down, the move an SLP in Supreme Court which is dismissed and then they pass another law, Sankaranarayanan argues. .Sankaranarayanan: It's in its fourth round now.Sankaranarayanan: 50% rule has never been misunderstood by lawyers or judges. It has not been misunderstood by the executive either..The executive understands that the 50% limit on reservations is like "the great wall of China" and that "it has to be breached every time that they want some political end", Sankaranarayanan contends..Sankaranarayanan says he does not agree with AG that Articles 15 and 16 have to be amended if State's powers have to be taken away. He argues that the changes only need to be made to Articles 341, 342 and 342A..The phrase "unless the context otherwise requires" in Article 366 (under which SEBC is defined) is factual, Sankaranarayanan argues..Court poses certain queries..While answering, Sankaranarayanan, on a lighter note: Dr Dhavan had said he is intimidated by Justice Bhat's computer, I am more intimidated by Justice Bhat..Datar contends that respondents cannot call for reconsideration of Indra Sawhney on the ground of not having considered directive principles - unless they show which directive principles were not considered, which would vitiate the principles therein..Datar argues that arguments have not addressed the validity of the Maharashtra SEBC Act which has to be tested on Indra Sawhney judgment and the law on the date of that particular Act.Datar: There has been no argument to show how the SEBC Act is valid. There has been no argument to show how the High Court's judgment is consistent with Indra Sawhney..Datar says that four sections of the Maharashtra SEBC Act are liable to be struck down. .Datar adds that if these four sections are struck down, on applying the doctrine of severability, the whole Act goes. The whole Act should be struck down..Datar: Rohatgi said the 50% limit is not cast in stone. I beg to differ. 50% is now cast in stone. It is as much part of our Constitution as Article 14 is, 15, is 16 is..Datar: Within the Marathas, there are people who are not educationally and socially backward. That is the "creamy layer...". He adds that nothing is being done about this aspect by the powers that be. "Creamy layer is virtually meaningless today.".Datar: 50% should be taken as the inviolable rule and it is cast in stone..Datar: Till date, no one has said for OBCs, we should cross 50%... only for these special backlog vacancies, they sought to amend....Datar contends that the argument that the 50% limit should be lifted because of changing social dynamics is totally untenable on facts..Datar submits that even Parliament at one point observed that 69% reservation in Tamil Nadu cannot go on. .Datar: What is the only way? Put it in the 9th schedule. But for the 9th schedule, 69% reservation would have gone in 1994 itself. Because of 9th schedule, it continues.Datar makes submissions on why the "TMA Pai case" argument would not hold..Datar argues that the 50% limit on reservations has given a certain amount of legal stability and certainty. .Datar: I shudder to think what will happen if this 50%limit is removed. 50% is like a dam. If taken away, there will be a flood of populist theories in elections.Datar: Ultimately, there are limits on power... whatever the legislature wants to do in terms of affirmative action, the 50% is a line that cannot be crossed.50% rule must stay, Indra Sawhney case need not be re-considered, Maharashtra SEBC Act must be struck down, he contends. .Datar concludes..Court says it will continue hearing tomorrow for Attorney General and Solicitor General to give reply .Senior Advocates Siddharth Bhatnagar, RK Deshpande seek to make submissions. Court says it will give them 5 mins tomorrow.