Political obligation not synonymous with constitutional obligation: Dhavan tells SC


Today News Online Service
New Delhi, March 17

Noting that political obligation was not synonymous with constitutional obligation, senior advocate Rajeev Dhavan on Wednesday countered before the Supreme Court the argument that circumstances have changed, saying the only changed circumstance is that more people want reservations.

“What exactly is the change that has taken place that requires a re-examination of the Indra Sawhney case? Why to go beyond 50%?… Just because there is clamour for it? If more people want it, we have to be more rigorous,” Dhavan told a five-judge Constitution Bench headed by Justice Ashok Bhushan.

On the third day of the hearing to decide whether the 11-judge Bench in the 1992 verdict in the Indira Sawhney (Mandal) case which fixed 50% ceiling for quota in government jobs and admission to educational institutions should be revisited, Dhavan and senior advocates Pradeep Sancheti and BH Marlapalle opposed the proposition.

“When they seek 75% or 80% of reservation, it needs to be kept in mind that there is no obligation at all. Political obligation is not synonymous with constitutional obligation. The standard for reservation above the 50% limit is extremely high. In certain areas, there can be no reservation. Did Maharashtra take this into account?” Dhavan wondered.

He said reservation was being given in states because of social pressure and almost as a consequence of threat that “if you don’t do it, we will rebel”.

“This was done by the Jat community. Meena community also wants to be included in the Scheduled Caste,” Dhavan submitted.

“The secret of India’s success with reservations apart from political factors that have armed it is that the idea behind this is you maintain a balance. If you go beyond (50% ceiling), then there something is wrong,” Dhavan said, adding he didn’t know of any case where any community had been deleted from the list.

On Tuesday, senior counsel Shyam Divan had contended that after the 102nd Constitution Amendment, Parliament alone has the power to make changes to the list of ‘Socially and Educationally Backward Classes (SEBCs)’ as now there’s a specific procedure for identifying SEBCs under the Constitution.

The 102nd Constitution Amendment Act, 2018 inserted Article 338B which deals with the structure, duties and powers of National Commission of Backward Class (NCBC) and Article 342A on 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.

According to Article 342A, the President may specify the socially and educationally backward classes in the various states and union territories in consultation with the Governor of the state concerned.  However, a law passed by Parliament is needed for the list of backward classes to be amended, Divan had explained.

 



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