SC to pronounce verdict today on revisiting 1992 Mandal verdict on quota

Satya Prakash
Tribune News Service
New Delhi, May 5

The Supreme Court will on Wednesday pronounce its verdict on referring to a larger Bench the 1992 verdict in the Indira Sawhney (Mandal) case, which fixed a 50 per cent ceiling for quota in government jobs and admission to educational institutions.

A five-judge Bench led by Justice Ashok Bhushan had on March 26 reserved its verdict after hearing rival arguments from several senior advocates, including Attorney General KK Venugopal and Solicitor General Tushar Mehta, for 10 days.

It will decide whether the Mandal judgement should be revisited in view of subsequent constitutional amendments, judgements and changed social dynamics.

The Bench is also examining if a state legislature is competent enough to declare a particular caste to be socially and educationally backward for grant of quota.

During the hearing, the Bench had said all caste-based reservations may go and only those meant for Economically Weaker Sections (EWS) may remain, even as it clarified that it was a radical idea and a policy matter to be decided by the government and Parliament.

Noting that affirmative action was not limited to reservation alone, it had said states should take additional steps to promote education and establish institutions for the upliftment of socially and educationally backward classes (SEBS).

“Why can’t other things be done. Why not promote education and establish more institutes? Somewhere this matrix has to move beyond reservation. Affirmative action is not just reservation,” it had noted.

The Bench -- which also comprised Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat – had wondered if there was no limit to quota what would happen to the concept of equality. “What about the resultant inequality? How many generations will you continue...?” it had asked.

While upholding the reservation for OBCs, a nine-judge Constitution Bench had in its Mandal case verdict put a 50% ceiling on quota in government jobs and declared reservations in promotions unconstitutional. It had also made it mandatory to exclude the creamy layer among OBCs while giving the benefit of reservation to them.

The matter went to the Constitution Bench during a hearing on the legality of the Socially and Educationally Backward Classes (SEBC) Act, 2018, enacted by the Maharashtra Assembly to grant reservation to people of the Maratha community in jobs and admissions.

The top court had on September 9 stayed the implementation of the legislation and referred to a larger bench the batch of pleas challenging the validity of the law, but made it clear that the status of those who have availed of the benefits would not be disturbed.

The Bombay 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.

The high court had said that the 50-per-cent cap on total reservations imposed by the Supreme Court could be exceeded in exceptional circumstances.

The Centre had defended the Maratha reservation law, saying Article 342A added to the Constitution by the 102nd Amendment was confined to Central Government and states were not denuded of power to issue their own lists of SEBCs.

“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 had contended.

The state assembly has the legislative competence to make laws to grant reservation to Marathas and in its view the SEBC Act, 2018 granting reservation to candidates from the Maratha community in jobs and education was constitutional, Mehta contended.

Venugopal had submitted that the 102nd amendment did not deprive state legislatures of the power to enact laws determining the SEBC and conferring benefits on them.

Mehta had said Article 342A was only an enabling provision and did not denude states of the power to declare SEBCs.

Mehta had said if the court held that states were not denuded of power to issue SEBC list after the 102nd Amendment, it might not have to address the question as the amendment act was challenged on the ground that it took away states’ power to issue SEBC list.