The Supreme Court on Wednesday was urged to set up a 11-judge Bench to reconsider its 50% cap on reservation.
The push for it came while the court was hearing a challenge to the Maratha reservation law. A bunch of petitions contended that the law, which provides 12 to 13 per cent quota for the community in Maharashtra, breached the 50% cap on reservation declared by a nine-judge Bench of the apex court in 1992.
Appearing before a Bench led by Justice L. Nageswara Rao, senior lawyers from across the spectrum, including Mukul Rohatgi and Kapil Sibal, asked the court to refer the case to a numerically superior Bench of 11 judges. This Bench should, rather than restricting itself to the Maratha law, set about reconsidering the 50% ceiling itself.
Mr. Sibal reasoned that 28 States had granted reservation exceeding 50% to their respective backward classes. He suggested that the court should hear all these States. “Eighty-five per cent in Maharashtra belong to backward classes, so is it in many States”, he submitted. The 50% limit in reservation declared by the nine judges on the Bench in the Indira Sawhney case was nearly 30 years old, he noted.
Lawyers submitted that the court should revisit the percentage of reservation, taking into consideration the recent developments in the front, including the 10% quota for economically weaker sections introduced recently through the 103rd Constitutional Amendment.
Mr. Sibal said the amendments made to Articles 15 and 16 of the Constitution entailed both “empowerment” and “employment” to the backward classes. Empowerment of backward classes was a different concept from mere employment. Indira Sawhney preceded these amendments.
“Article 15(4) and Article 16(4) have not been interpreted in the context of Indira Sawhney [judgment]... There are still a large number of people who are still backward”, he submitted.
‘Political pressure’
The appeals have been filed by individuals from all walks of life and NGOs against the High Court decision upholding the Maratha law. They argued that the Socially and Educationally Backward Classes (SEBC) Act was born under “political pressure” and in “full defiance” of the rule of law and equality.
“The Maharashtra government has made a mockery of the rule of law. It has also used its constitutional powers arbitrarily and purely for political gains”, the petitions said.
One of them argued, “The High Court erred in concluding that the mere fact that other OBCs would have to share their reservation quotas with the Marathas [if the Marathas were simply included in the existing OBC category] constitutes an exceptional circumstance warranting a breach of the 50 per cent ceiling limit set by Indira Sawhney”.
The pleas said the SEBC Act overstepped the constitutional limitations contained in the 102nd Amendment to the Constitution. The 102nd Constitutional Amendment said reservation could be granted only if a particular community was named in the list prepared by the President.