Supreme Court Constitution must grow with nation: Sibal during hearing on...

Constitution must grow with nation: Sibal during hearing on Maratha Reservation

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New Delhi, Mar 23 (ILNS) Senior Advocate Kapil Sibal, while continuing his arguments on Day 7 of hearing in the Maratha reservation matter, today said that the Constitution is a living and organic document, which cannot remain static and must grow with the nation.

A Constitution Bench of the Supreme Court, comprising Justices Ashok Bhushan, L. Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, is hearing the petitions challenging the validity of the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, which had extended 16 percent reservation for the Maratha community.

Mr Sibal started the day by reading from the Mandal Commission Report, as stated in the last chapter, both Hindu and Non-Hindu OBCs comprise 52 percent of the population. Accordingly 52 percent of government seats should be reserved for them, but the Supreme Court rejected this contention many times. But as per Article 15 and 16, it should be below 52 percent, while continuing the argument on the same point, he added the Mandal Commission wanted 52 percent. So what was laid down in Indra Sahwney has nothing to do with the Mandal report. 

The bench asked, if the Office Memorandum (OM) was subject matter for review in Indra Sahwney, why can’t it logically be said that the court has power to do it? 

Sibal answered, “Let’s say OM was correct. Mandal Commission happened in 1980, before that we had a judgement of Thomas that set aside the Balaji judgment, then came Vasant Kumar in 1985 which clearly ruled that this 50 percent is wrong.” The contentions of Sibal were replied by the bench, “No, that’s wrong.”

Sibal then moved on to explain his contention that because there were different views your lords has to decide on a larger bench. It was held in Indra Sahwney that there should be harmonious construction in 15(4) and 16(4). If 15(4) is exception of 15(1) and 16(4) is exception of 16(1) then the moment you cross 50 percent, it becomes bad, later the Constitutional Bench held that it is not an exception then where does that 50 percent come from? 

Justice Ravindra Bhat replied, “Every part of the Constitution has to be read in some ways. Is this Constitution made to make more classes? No. We have to find the balance. It is written in the Constitution. If each takes particular fact from the case, it is a construction of Constitution all throughout.” 

Sibal then replied, “I am not disputing what my Lord is saying. I am not making hard and fast arguments that it should be 50, more or less. I am saying that you must give free hand to select the reservation. For example, Kendriya Vidyalaya (KV) school is only for children of government servants.” To which, Justice Bhat replied, “It is wrong, I am from KV, it’s not just for government servants, I had all kinds of students in my school.”

Sibal asked the bench to allow him to develop his arguments, it is for government servants, then Army and then general public. Only if seats are vacant then it goes to general category. 

He said, “You create a category for government servants, you made a category where general category can’t compete, and it has to do with 15(4). Where that reservation under 15(4) does comes from? It is my submission that, yes the power is there for state to decide and who and how much is to be given under reservation. And it is for you (Supreme Court) to decide whether it is rightly or wrongly given. 

The balance would be decided as per the case and not arguing over 15(4) and 16(4) 

Which is that constitutional provision that provides that balance?

Another example, advancement of women, somebody says we want it, how can you? It’s for women. The point is these are issues that should be decided by the larger bench. These issues of 15(4) and 16(4) are never decided before. For example Muslims and Christians, are there any number of Dalits? Now, most of them are converted. Suppose the State was to say, Dalit-Christians are given for 100 percent and similarly for backward Muslim community. Even Indra Sahwney refers to it. Reservation is given then what is wrong? Where is the question of balance? You go to Bihar, Odisha, Gujarat, Rajasthan and you find people crying for education but the State has failed them. A person getting job in Government School living 100 km away in a city, he won’t come to school to teach but still get paid; only the state has to look over it. There is no reservation for Dalit Christians, they cried for it, be it Balaji, Indra Sahwney, nowhere.

Sibal then read from the judgement of Balaji and argued that Balaji poses a question regarding the identification of categories. On the respected question, Justice Bhat said, I can’t say whether Balaji did it, but there were answers before in different cases. The point of view is some states may give it some may not. Different states have different categories and reservation is given because it was necessary and they were identified. 

Sibal then stated, I am posing a question. In a given situation if the reservation if more than 50% then why is it bad? And in course of time you find certain group didn’t get education, and then why not give them reservation. As per Balaji, You can’t lay down any percentage without data, that’s why I said Mandal can’t be taken in account because it had no data. Balaji states a special reservation should be 50 percent which is an obiter and not a judgement, but which in time was taken as a finding of court which it is not. 

“What is prohibited is hostile discrimination and not reasonable classification which is struck down in 15(1), reflected in NM Thomas itself,” Sibal said.

The moment I classify something beyond 50 percent is deemed to be discriminated, it is not true. Reading from KV admission criteria, your lordship knows and I know this, there is hardly any list given to general category? Then how do you describe it in 15(4), it is because it is not considered as hostile discrimination.

“The point is you cannot create any principle of law that de hors data, facts, analysis where particular classification is done for the enhancement of SEBC. There can’t be any rule of per se discrimination; it is not permissible in law” 

Sibal then stated many times this situation of agitation is arising. Jats, Gurjars, Patidars etc agitation has happened in the past. Maratha is in power that doesn’t mean they are not backwards, one cannot say this. It is to be decided by you (Supreme Court) on facts that whether it is violative of Article 14, 15(1), 16(1) is on you.

Data has to be analysed. Just because the Jats are in power, doesn’t mean that the Jats are socially and educationally forward.

The court can’t, in anticipation, lay down a rule of law; jurisdiction under constitution is to check the judicial interpretation and not to legislate.

If my lord’s decision in Indra Sahwney is right then parliament can’t make laws, because your lordships have shackled parliament. Judges have a capacity to look fresh on basis of collective and scientific data, Mr. Sibal stated. 

He then stated from the chart as provided by Sr Adv Mukul Rohatgi, it is observed that judgments except balaji are interpretation of 16 and not 15, then why are these judgments taken as precedent. 50 percent of these are an obiter.

Dealing with the aspect of subsequent constitutional amendments, my legal proposition is Indra Sahwney is not good law after 103rd amendment i.e. after the introduction of 15(6) and 16(6). He then proposed to take the challenge to 11 Judges Bench, unless you say that the bar of 50 percent is not a ‘Lakshman Rekha’ and the judgement is not cast in stones. Whether it is above 50 or not, then you decide. The limit in Indra Sahwney can no longer be the benchmark for reservation.

Justice Ravindra Bhat said, I am assuming what you want us to say is that we struck down the legislation in all those states where more than 50 percent is there. We have to make stand each of them; every state has a different reason and feature for that.

Sibal then stated, you will have 50% for SEBC and (additionally) up to 10% for Economically Weaker Section (EWS). That also depends from State to State. I have shown the level of poverty in the country, look at the number of people living below the poverty line. You will make reservations for them, and you should. If Indra Sahwney said that 50% is the limit because otherwise it would violate 15(1), then this constitutional amendment would per se be bad? I am not arguing against it, I am for it. It was up to 50% till Indra Sawhney, beyond 50% for Economically Weaker Sections despite Indra Sawhney. That’s what it is. If you say that 50 percent is the ‘Lakshman Rekha’, necessarily it must go to a larger bench, several states have provided reservation beyond 50 percent, but the court never struck it down. He then argued that the approach may be that the Court examines the law in question if some state crosses the 50% mark for reservations and strikes it down if it is hostile discrimination and doesn’t have any reasonable classification. The submissions made by Mr. Sibal are that the bar of 50 was not required to be decided in Indra Sawhney case, 50 percent did not come up for consideration in questions before the court.

The bench points out that a petition is before the court that challenges this criterion. 

The court has already asked for the State’s response so it can examine the concerned laws. If it violates basic structure, it can be struck down. The state can go beyond 50 % if they show that there are extraordinary situations. There will be no presumption that power will be politically exercised by the legislature or the executive. Court will only decide on Constitutional principles, the bench said

The Union never made a Uniform List but accepted the State list of SC/ST, Tamil Nadu changed the SC/ST list which was never changed in the past, and it has 69% reservation.

Power to identify the SEBC is vested in the state by our Constitution and recognized by different judicial pronouncement, this legislation in Maharashtra is a legislative act, Strike it down or uphold, but it is a legislative act. 15(4) and 16(4) are part of chapter of Fundamental Rights therefore by a notification you can’t take that power away.

The Bench then stated that there will be no presumption that power will be politically exercised by the legislature or the executive. It will only be decided on Constitutional principles.

Sibal summed up his argument by saying, “Your lords have great experience; many things were done through your judgements. Looking at all these issues in the liberal-dispassionate manner. All of us have our opinion, I will have my opinion, your Lordships will have an opinion, not in the level of judicial, but otherwise.

“I am reminded of the words said in a judgement of this court. It says, ‘The Constitution is a living and organic document it cannot remain static and must grow with the nation. The constitutional provisions must be construed broadly, liberally having regards to changed circumstances and the needs of the time and polity. Change is inherent in every decision-making process and that change comes about when your Lordships look at the Constitution not as a document, but through its spirit for generation to come to realise its goals’.” ILNS/SNG/RJ

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