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Centre caught by surprise as SC constitution bench agrees to hear Art. 334 SC/ST reservation challenge in legislatures

A petition pending since 2000, _Ashok Kumar Jain v UOI_ (civil writ petition 546/2000) against the 79th Constitution Amendment Act, 1999 which had effectively extended constitutional scheduled caste (SC) and scheduled tribe (ST) reservations in the Lok Sabha and state assemblies until 2010 (and until 2020 after the 95th amendment), was revived by the Supreme Court’s five Judge constitution bench today at 2 pm in court No 2.

The court said in its order:

challenges the validity of the Constitution (79th Amendment) Act, 1999 whereby the words `sixty years’ have been substituted in place of `fifty years’ in Article 334 of the Constitution. Learned counsel argues that this amendment is against the basic feature of the Constitution. According to the learned counsel the democracy has been recognised as one of the essential features of the Constitution by this Court and since the Amendment Act deprive the democratic rights of the petitioners, inasmuch as it is violative of Article 14 of the Constitution, it deserves to be struck down.

After we heard the matter, we are of the view that these matters are required to be heard by a Constitution Bench of Five learned Judges, since it involves interpretation of the Constitution.

The matters are, therefore, referred to a Bench of Five learned Judges.

What’s at stake

Of the total strength of 543, in Lok Sabha, 79 seats are served for Scheduled Castes and 40 for Scheduled Tribes.

Article 330 provides that seats shall be reserved in Lok Sabha for SCs and STs and article 332(1) provides reservation of seats for them in the State Assemblies.

Initially, when the Article was framed, this reservation was to last for ten years only. Article 334, as originally enacted, provided that these provisions relating to the reservation of seats for SCs and STs would cease to have effect on the expiry of a period of ten years from the commencement of the Constitution.

However, the period fixed by this article had been extended every 10 years through constitutional amendments in 1960, 1969, 1980 and 1990.

This Wikipedia entry is useful to understand the issue better.

The statement of objects and reasons of the 1999 amendment give a glimpse of the Government’s stand then. The 2009 Amendment Bill repeats the same objects and reasons.

Government scambles to save reservations

The Union of India, which was unprepared for the petition, sought to argue through Additional Solicitor General, Maninder Singh, that the petition became infructuous with the passage of subsequent legislation further amending Article 334, replacing the words “sixty years” with “seventy years” by the 95th Amendment Act, 2009.

When the petitioner’s counsel, PP Rao and Rajeev Dhavan submitted that that the UOI could not be allowed to evade the proceedings on technical grounds, the bench asked the UOI counsel, to prepare its response, by 14 March.

Rao persisted that the hearing should continue, and the petitioners could go ahead with their arguments, and in the meantime, the UOI could come with its response.

When the UOI realized that its ‘petition became infructuous’ argument could not be sold to the bench, it sought six weeks time to file a reply to the petition.

Rao and Rajeev Dhavan argued that the petition could not be called infructuous, when the issues remain the same, and one amendment which was challenged in 2000 was replaced by another in 1999.

The UOI’s reply to the petition and the stand it takes on the vexed issue of repeated extensions given to reservation of seats for SC/STs in Parliament and state assemblies once in ten years will be of considerable news interest in the coming weeks.

Apart from the lead petition by Ashok Kumar Jain, the other writ petitions, which have ben tagged together, have been filed by Harishankar Rajpurohit (filed in 2001), Mange Ram Sharma (2001), T Veerabhadra (2006), BS Parama Shivaiah (2007), B Krishna Bhat (2007), and Sunder Singh Thakur (2012).

This brief order passed on 2 September 2003 in the case explains the issues in the petition, and reveals the names of the counsel who argued on both the sides then.

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