[Maratha Reservation] Does 102nd Constitutional Amendment mean notifying backward classes have to be started afresh? Supreme Court to petitioners

Day 2 of the hearing in the Maratha reservation case saw counsel appearing for various petitioners argue in the Supreme Court that Maharashtra did not have the legislative competence to add the Maratha community to the list of Socially and Educationally Backward Classes (SEBC) after the 102nd Amendment to the Constitution of India..The Bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and Ravindra Bhat today heard submissions by Senior Counsel Shyam Divan, Gopal Sankaranarayanan, Siddharth Bhatnagar and Pradeep Sancheti for various petitioners..Highlights of the hearing today.Only one “Central” list for SEBC after 102nd Constitutional Amendment.102nd Constitutional Amendment introduced Article 342A, defined SEBC for the first time through insertion of clause 26C in Article 366 and introduced Article 338B dealing with establishment and functions of the National Backward Classes Commission.Whether it is the Central or State list of SEBC, the identification of SEBC is now through a narrower process under Article 342A, after the 102nd amendment, Divan argued.Whether, in the State or Central list, identification of SEBC has been centralised after the 102nd amendment. This does not affect past actions. This is prospective, Divan added.Article 342A lays down that SEBC can be identified only through a public notification by the President of India after consultation with the Governor.State can make provisions for the benefit of SEBC under Article 15(4), but the SEBC concerned has to be mentioned in the SEBC list drawn up under Article 342A.In the present case, there was no presidential notification, consultation with the Governor, or consultation with the National Commission for Backward Classes (NCBC) before Marathas were extended the reservation, Divan pointed out.State’s power would remain in so far as the identification of SEBCs for the purpose of removal after review of communities from the list is concerned.Whereas Article 342A mentions only “Central” list of SEBC, this mention of the word "Central" may be either (a) to clarify that there is only one, central list of SEBC (b) to get around the effect of the Indra Sawhney judgment which had directed both the Centre and the State to draw up lists, Sankaranarayanan submitted.Once Article 338B is read and the role of the National commission is found, and Article 366 and Article 342A is read in the context of Articles 341 and 342, there is no doubt for the purpose of the Constitution, wherever SEBC is found, the only power is with the president and, thereafter, the parliament, Sankaranarayanan argued.If there are any changes that the State would like to make, it may make a request. The National Commission will consider it, which will be done under Article 342A(2), Bhatnagar submitted."Central" list should be viewed as the list that is central to all, in terms of the grammatical, normal meaning for “central”, Sancheti argued..Can we wait 10 years for Centre to notify a list under Article 342A?.The hearing saw the Court express concern that if the arguments on the effect of the 102nd amendment is accepted, it would also mean that no caste can be given the benefit of reservations unless the SEBC list is determined by the president under Article 342A..While so, there is yet to be a central list published under Article 342A, the Court pointed out..“If the argument which is pursued by you is accepted - henceforth, it is only the centre. Do we start with a clean slate? All lists? Because there is no saving provision. According to you, the exercise has to be started afresh, like the SC/ST order of 1950. Has the Centre started it? It is going to throw the entire thing into turmoil,” the Court remarked..The Bench added,“SEBC is under Article 342A and no notification is there. If read strictly, no benefit can be given to SEBC till a list is prepared. Can we wait for 10 years and deny benefits extended under the Constitution…?”.Sankaranarayanan responded,"I cannot take a churlish argument like that and I don't need to. Before Your Lordships today is the power of Maharashtra to include any group in SEBC. That's a narrow compass. I don't have to widen that and say there are no groups today.”.He added a suggestion that “Maybe some directions may be necessary that a final list be drawn up within whatever period of time, if my argument is accepted. They may have to replicate (earlier lists)…”.At this point, however, the Bench brought back the scope of its discussions to 2018 Maharashtra SEBC Act under challenge..No federal rights upset by 102nd Constitutional Amendment.On this aspect, Sankarayananan argued:The 102nd amendment has only taken away what the Court gave the State in the Indra Sawhney case when it asked for the State to also identify SEBC.This has been restored with the President and the parliamentNo federal right was given in the first place for States to argue that the 102nd amendment would violate federal rights..No need to unsettle law laid down by Indra Sawhney.There is nothing to show that there is any error in the Indra Sawhney judgment, Sankaranarayanan argued.The consistent position of the State of Maharashtra has been that the Indra Sawhney case is right, and that it is relying on the exception to the general rule of 50 percent limit. The State cannot now say that Indra Sawhney is not correct. This would only be an attempt to unsettle what has been settled.103rd amendment extending quota for Economically Weaker Sections (EWS) involves a ceiling limit or maximum of 10%. This does not necessarily mean 50% rule is breached. Indra Sawhney case would continue to prevail..Gaikwad Committee report which recommended Maratha quota is faulty.Senior Advocate Sancheti submitted that the Gaikwad report has been challenged on three basic fundamental areas (a) collection of the sample of data or criteria of collection of data (b) analysis of data (c) the methodology of collection of data.Only 950 persons from an urban population of roughly 5 crores were examined by the Committee. Only the most backward pockets of the State was visited to collect data. The committee has not interviewed a single person in Mumbai, even though the maximum number of jobs, colleges are in Mumbai, he contended. Judicial review can be exercised once it is found that the report is not rational, not objective and not scientific, Sancheti added..Divan had also made some submissions on this front during yesterday’s hearing when he had begun his submissions. Disputing the Gaikwad commission’s finding that the Marathas were backward, Divan submitted:.There have been a substantial number of Marathas who have occupied positions of power such as Chief Minister, MLAs, IAS, IFS officers etc.54% of educational institutions are controlled by Marathas.Marathas dominate Universities with 60-75% in management positions.75-90% of the land is owned by Marathas.150 of 161 of milk cooperative societies are chaired by Marathas.17 of 25 or 68% of medical colleges are founded or owned by Marathas.6 Backward Classes Commissions (3 State and 3 National) did not include the Maratha community as a backward community and it was recognised as a forward community by the NCBC in 2000.Gaikwad report failed to consider the Maratha community is politically organised and politically dominant.Report's attribution of farmer suicides to the backwardness of the Maratha community is flawed. The suicides were due to a general agrarian crisis. Divan also questioned how dabbawalas being from the Maratha community can be an indicator of backwardness. .He further contended that introducing Maratha reservations in medical PG admissions is irrational and that once a candidate holds an MBBS degree, s/he cannot be regarded as "educationally backward.".The hearing will continue tomorrow..Under challenge is the Maharashtra SEBC Act which extends a 16% reservation for the Maratha community in public jobs and education. A Bombay High Court upholding the Maratha reservations has been challenged. Senior Advocate Arvind Datar concluded his submissions yesterday, when the Court had begun final hearings in the case.