SC issues notice to all states on raising 50% reservation cap

A view of the Supreme Court | Photo: PTI

The Supreme Court sought responses from states on Monday on a question of "seminal importance" whether legislatures were competent to declare a particular caste to be socially and educationally backward for grant of quota.

The top court will examine the question of interpretation of the 102nd amendment to the Constitution dealing with reservation to a particular community, named in the list prepared by the President.

The 102nd Constitution amendment Act of 2018 inserted Article 338B (deals with the structure, duties and powers of National Commission of Backward Class) and 342A (power of the President to notify a particular caste as Socially and Educationally Backward Class (SEBC)) and the power of Parliament to change the SEBC list.

The issue of interpretation of 102nd amendment arose before a five-judge constitution bench while examining a batch of pleas on the validity of the Maratha reservation law and the legal issue of whether a state legislature is competent enough to declare a particular caste to be socially and educationally backward for grant of quota.

The bench, headed by Justice Ashok Bhushan, said it would also hear arguments on the issue of whether the landmark 1992 judgement in the Indira Sahwney case -- also known as the Mandal verdict, which caps the quota at 50 per cent -- should be re-looked and referred to a larger bench.

The bench, also comprising justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, said it would commence the hearing from next Monday and asked the states to file a brief note of written submissions on the issue.

"We have considered the submission of different parties and are of the view that the interpretation of 102nd amendment of the Constitution is of seminal importance and, therefore, notice has to be issued to the states," the bench said.

"Notices be served on the standing counsel of each state and brief notes of submissions be filed," it added.

It noted the submission of senior advocates Mukul Rohatgi, Kapil Sibal and P S Patwalia, appearing for Maharashtra government, the verdict on the question of interpretation of the 102nd amendment might be affecting the federal structure of the states and, therefore, they needed to be heard.

Attorney General K K Venugopal, appearing for Centre, said the states might be affected with the decision of the court on interpretation of the 102nd amendment and it would be better if notices were issued to all the states.

Some of the parties opposed the issuance of the notice, saying the question of interpretation did not concern them and it might delay the process.

The top court had said on February 5 that it would hear from March 8 in a hybrid manner -- a combination of physical and virtual hearings -- the pleas pertaining to the 2018 Maharashtra law granting reservation to Marathas in education and jobs.

It had fixed the schedule for hearing of the matter and said it would try to wrap up the hearing on March 18 itself. On January 20, the Maharashtra government had told the bench that a case of this nature should be heard once physical hearing commences.

On December 9, the apex court had said that issues pertaining to the 2018 Maharashtra law, granting reservation to Marathas in education and jobs, requires "urgent hearing" as the legislation had been stayed and the "fruits accrued" were not reaching to the people.

The apex 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 law, but made it clear that status of those who have availed of the benefits would not be disturbed.

The Socially and Educationally Backward Classes (SEBC) Act, 2018, of Maharashtra was enacted to grant reservation to people of the Maratha community in the state in jobs and admissions.

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.

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