Review in the context of many states hiking the reservation limit from 50% fixed in 1992
The NCLT, in May 2018, permitted the former promoter to convene meetings between shareholders and creditors on the grounds that IBC’s larger objective was to keep the companies as going concerns.
The Supreme Court on Monday sought response from all the states and Union Territories on whether the 50% cap on reservation in government jobs and educational institutions, fixed by a nine-judge bench in the 1992 Mandal Commission judgment, could be re-examined by a larger Bench. The question of review has arisen in the view of subsequent constitutional amendments and the socio-economic changes in the society. Also, many states, including Tamil Nadu and Maharashtra, have since made their own laws, raising the limit to 60% or thereabouts.
The apex court asked for their response on whether state legislatures were competent to declare a particular caste to be socially and educationally backward for grant of quota.
A five-judge bench led by justice Ashok Bhushan issued notice to all state governments and Union Territories on whether reservation can be allowed to breach the existing 50% ceiling. It also sought to know their stand on the Centre’s 10% economically weaker section quota, which was brought through the Constitution (103rd Amendment) Act, 2019 and is pending before another Constitution bench in the apex court.
“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.
The bench also asked states to respond to a 2018 Constitution (102nd amendment) Act brought about by Parliament, which gave constitutional recognition to National Commission for Backward Classes and also on whether Article 342A that abridged their rights to create reservations for backward classes. The 102nd Constitution amendment Act of 2018 inserted Article 338B (deals with the structure, duties and powers of National Commission of Backward Class) and Article 342A (power of the President to notify a particular caste as Socially and Educationally Backward Class), by which the competence of states to make laws on reservation for Backward classes was taken away.
The top court will also examine the possibility of referring the 1992 Indra Sawhney’s judgment (Mandal Commission) to a larger bench. It fixed the matter for day-to-day hearing from March 15.
The issue of interpretation of 102nd amendment arose before a five-judge constitution bench while examining a batch of petitions challenging the constitutional validity of the Maharasthra Socially and Educationally Backward Classes (SEBC) Act, 2018, which provided for a quota to Marathas in jobs and education.
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 law, but had made it clear that 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% reservation was not justifiable as the quota should not exceed 12% in employment and 13% in education. The HC said that the 50% cap on total reservations imposed by the SC could be exceeded in exceptional circumstances.
Senior counsel Kapil Sibal and Mukul Rohatgi, appearing for the Maharashtra government, argued that the issue will have an impact on the federal structure of the country and, therefore, all states need to be heard as it involves interpretation of Article 324A and will affect every State.
Rohtagi submitted that the interpretation of Article 342A will affect the legislative competence of the State as after the 102nd Constitutional Amendment inserted Article 342A, the state legislature had no competence to legislate with regard to reservation of economically and socially backward communities. He argued that constitutional powers under Articles 15 and 16 cannot be taken away from the legislative competence of the State.
Attorney general KK Venugopal also agreed that the interpretation of the 102nd amendment will have far-reaching consequences for all the states and it would be better if notices were issued to all the states.