This article is written by Jeeni Thirumalanadha Siva Seshu, pursuing a Certificate Course in Advanced Civil Litigation from LawSikho.

iItroduction

On May 5, 2021, the Supreme Court of India 5 member Constitutional Bench dismissed the “Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 (Hereinafter referred to as “SEBC Act,2018”)” in the case of “Dr. Jaishri Laxmanrao Patil Vs The Chief Minister & Ors”. This judgment re-ignited the conversation around the reservation system in India.

Reservation is a form of quota-based affirmative action for underprivileged communities and is the process of lifting them socially, educationally, and economically who faced discrimination and historical injustice. The Constitutional Laws and Local Regulations govern it. The main motto of the reservation is to achieve equality enshrined in the Constitution. This article would give an insight into the evolution of reservation law in Maharashtra, the disputed part of the legal framework and the recent judgment that struck down the Act for exceeding 50% cap.

Insights into the evolution of the Maratha reservation law

The “Maratha” is a Hindu community primarily found in the Indian state of Maharashtra. Following the implementation of the Indian Constitution, the President of India, in the exercise of power under Article 240, appointed the Kaka Kalelkar Commission, the first National Commission for Backward Classes, to investigate the conditions of all such socially and educationally backward classes.

The Kaka Kalelkar Commission (30.03.1955)

According to the findings of the Kaka Kalelkar Commission, apart from Brahman, the Maratha claimed to have dominated all other communities in Maharashtra. As a result, the first Backward Classes Commission (Kalelkar Commission) did not recognise Maratha as a backward class community in the state of Bombay.

B.D.Deshmukh Committee (11.01.1964)

On November 14, 1961, the Government of Maharashtra appointed the B.D.Deshmukh Committee to define Other Backward Casts (OBC) and to take steps for their development in accordance with the directives of the Government of India. In its report, the B.D. Deshmukh Committee stated, “It did not find Maratha as a backward class.

Mandal Commission (31.12.1979)

The President of India appointed the second National Backward Classes Commission, popularly known as the Mandal Commission, in accordance with Article 340 of the Constitution. In its report on the state of Maharashtra, the Marathas were included with 2.2 percent in the category of “forward Hindu castes and communities”.

The National Commission for Backward Classes held a public hearing in Mumbai in response to the State’s request; the Chairman of the Maharashtra State Backward Classes Commission submitted a detailed report dated 25.02.1980 stating that Maratha is not a socially and educationally backward class community, but rather a socially advanced and prestigious community.

Rane Committee (26.02.2014)

Despite the existence of a statutory State OBC Commission, the Maharashtra government appointed a special committee led by a sitting Minister, Shri Narayan Rane, to submit a report on the Maratha caste. On February 26, 2014, the Rane Committee submitted its report recommending a special reservation for the Maratha caste under Articles 15(4) and 16(4) of the Indian Constitution.

Maharashtra Ordinance No. XIII of 2014  (09.07.2014)

Maharashtra Ordinance No. XIII of 2014 was promulgated, which provided for a separate 16 percent reservation for seats for admissions in aided and non-aided institutions of the State, as well as an appointment to public service positions under the State.

The Government resolution dated 15.07.2014 and Ordinance No.XIII of 2014 was challenged in the Bombay High Court in “Shri Sanjeet Shukla vs. State of Maharashtra WP.No.2053 of 2014”.

On April 7, 2015, the Bombay High Court Division Bench issued an order staying the implementation of providing Maratha with a 16 percent reservation. The interim order, on the other hand, directed that appointments to the 16 percent reservation for Maratha in the previously issued advertisements be made from open merit candidates until the final disposition of the writ petition and that appointments be made subject to the outcome of the writ petition.

Justice M.G. Gaikwad Commission (02.11.2017)

On November 2, 2017, the Maharashtra Government appointed Justice M.G. Gaikwad as Chairman of the Maharashtra State Backward Classes Commission to submit a report on the facts and observations pertaining to the Maratha caste. On November 15, 2018, the State Backward Classes Commission submitted its report, which recommended that the Maratha caste of citizens be designated as a Social and Economic Backward Class (SEBC) of citizens with insufficient representation in services.

The Government based on the above report enacted the “Maharashtra State Reservation for Socially and Economically Backward Classes (SEBC) Act, 2018”and came into force on 30.11.2018.

The Hon’ble Supreme Court Judgment (05.05.2021)

Facts of the case

1. The State of Maharashtra issued an ordinance on July 9, 2014, granting the Maratha community 16 percent reservation in education and public employment. On November 14, 2014, the Bombay High Court issued an interim order halting the ordinance’s implementation. On December 18, 2014, the Supreme Court rejected a challenge to the interim order.
2. The Maharashtra state government established the Maharashtra State Backward Class Commission on January 4, 2017. The Commission chaired by Justice Gaikwad, recommended 12% and 13% reservation for Marathas in educational institutions and public sector appointments, respectively.
3. Maharashtra passed the socially and Educationally Backward Classes Act, 2018 on November 29, 2018, based on the Commission’s recommendations. The Act goes beyond the recommended quotas, granting Marathas 16 percent reservation in Maharashtra’s state educational institutions and public service appointments. Three lead petitions, as well as several other writ petitions, challenged the constitutional validity of the Act before the Bombay High Court. 
4. The Maharashtra State Government, on the other hand, argued that extraordinary circumstances, such as an increase in the number of suicides due to indebtedness and deteriorating incomes among Maratha families, justified the passage of the Act. It also claimed that the 2014 interim order was no longer in effect, because the provisions of the 2018 Act specifically repealed both the 2014 Ordinance and the 2014 Act. 
5. On July 12, 2019, the Supreme Court granted an appeal against the decision of the Bombay High Court and served notice on the Maharashtra state government. It decided not to stay the Bombay High Court’s decision. The preliminary issue that arose was whether this case should be referred to a larger bench because it involved significant legal questions concerning the interpretation of the Constitution. After hearing both parties, the Court decided to refer the case to a larger bench on September 9th, in brief, non-reportable order. Furthermore, it suspended the application of the SEBC Act to educational institutions, with the exception of Post-Graduate Medical Courses.

Issues in contention

The primary issues in the three lead petitions were as follows: 

• The Act is unconstitutional because it exceeds the 50% ceiling limit imposed on reservations in Indra Sawhney v. Union of India.
• The Act provides reservation on the basis of the Justice Gaikwad Commission report, which lacks reliable, scientific, and adequate data to justify either the backwardness of Marathas or the extraordinary condition of increasing reservations in Maharashtra from 52% to 68%.
• The Act establishes a separate reservation category for Marathas outside of the OBC category, infringing on Articles 14, 16, and 19 of the Constitution by bestowing special benefits on them.
• The Act infringes judicial power by directly overturning High Court orders from 2014 and 2016.
• The Act was passed without adhering to the procedures outlined in the 2018 102nd Constitution (Amendment) Act.

The Bombay High Court Ruling (27-06-2019)

• The Hon’ble High Court upheld the reservation and pointed out that the 16% reservation quota was not “justifiable” and it should be reduced to 12% in education and 13% in government jobs as recommended by the Justice M.G. Gaikwad Commission.
• The Hon’ble High Court also retreated that the reservation must not exceed 50% but in exceptional circumstances and extraordinary situations, this limit may be superseded based on available data on prevailing social dynamics.
• The Hon’ble High Court Stated in its ruling that “The existence of the central list of backward classes is distinct from the list of the State which is prepared by the State for translating the enabling power conferred on it and in any contingency, Article 342-A cannot be read to control the enabling power conferred on the State under Article 15 and 16,”.

Analysis of the supreme court judgment on the Maratha reservation law

Analysis in light of Indra Sawhney judgment

The Supreme Court stated in its judgment in “Dr. Jaishri Laxmanrao Patil Vs The Chief Minister & Ors” that the “Indra Sawhney v. Union of India” does not require a re-look by a larger bench in light of subsequent Constitutional Amendments, judgments, and changed social dynamics of the society, etc.

The main reasons for this ruling were the following:

1. The Indra Sawhney decision has stood the test of time and has never been called into question, and it is based on the unbiased principle of “stare decisis.”
2. The majority of members of the Constitutional Bench in Indra Sawhney’s judgment, accepted that reservation should not exceed 50% as a rule and this 50% rulein exceptional and some extraordinary situations the reservation can be made exceeding 50% limit.
3. Strangely, neither the Maharashtra State Backward Commission Report, chaired by M.C. Gaikwad, nor the judgment of the Hon’ble Bombay High Court failed to establish the existence of an extraordinary situation warranting the grant of separate reservation to the Maratha community above the 50% limit.
4. Because the data and facts gathered by the Gaikwad Commission clearly show that Marathas are neither socially nor educationally backward, and the constitutional requirement that the backward class is adequately represented is not met, the Hon’ble Supreme Court struck down the SEBC Act, 2018. 

In paragraph 102 of the M.Nagaraj (Supra) decision, the Constitution Bench stated:

“If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335 then this Court will certainly set aside and strike down such legislation”

5. The Constitutional Bench of the Supreme Court in Indra Sawhney’s judgment stated that the ceiling limit on reservation fixed at 50 % is to preserve equality and balance.

6. Because no exceptional circumstances were established in granting separate reservations of the Maratha Community by exceeding the 50% ceiling limit of reservation, the SEBC Act, 2018 violated the principle of equality as enshrined in Articles 14 and 16 of the Constitution, rendering the enactment ultra vires. As a result, the Supreme Court overturned the SEBC Act of 2018.

Analysing in light of the Constitution (102nd Amendment) Act, 2018

The National Commission for Backward Classes (Repeal) Act was passed on August 14, 2018, repealing the National Commission for Backward Classes Act of 1993. The Constitution (102nd Amendment) Act of 2018 went into effect on August 15, 2018, adding Articles 338B, 342A, and 366. (26C). Article 338, sub-clause (10) was also modified.

A writ petition under Article 32 of the Indian Constitution, titled “Shiv Sangram & Anr. Vs. Union of India & Anr.” was filed, calling into question the Constitution (102nd Amendment) Act, 2018.

1. Whether the Constitution (102nd Amendment) Act, 2018 deprives the State Legislature of its power under its enabling power to enact legislation determining the socially and economically backward classes and conferring benefits on the said community: and
2. Whether Article 342(A) read with Article 366(26c) of the Indian Constitution limits states’ ability to legislate in relation to “any backward class” under Articles15(4) and 16(4).

The Supreme Court observed that with the introduction of Articles 366 (26C) and 342A via the Constitution (102nd Amendment) Act of2018, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the Constitution (102nd Amendment) Act of 2018.

The states can only make suggestions to the President of the Commission under Article 338B, through their existing mechanisms or even statutory commissions, for the inclusion, exclusion, or modification of castes or communities in the list to be published under Article 342A(1).

Furthermore, in the instant case, the Supreme Court stated that the states’ power to make reservations in favour of specific communities or castes, the quantum of reservations, the nature of benefits and the type of reservations, and all other matters falling within the ambit of Articles 15 and 16 will not be affected, except for the identification of SEBCs from the Constitution (102nd Amendment).

By clarifying the applicability of Article 342A of the Constitution, the Supreme Court ruled that the power of the states to legislate in relation to “any backward class” has no effect or harm on the federal polity and does not violate the basic structure of the Indian Constitution.

Struck down provisions by the Hon’ble Supreme Court 

The Hon’ble Supreme Court struck down the following Provisions of the SEBC Act, 2018, in its Judgment Stating the reason that these provisions are ultra vires the Constitution 

• Section 2(j)of the Act

“It declares Maratha community as -Educationally and Socially Backward category”.

• Section 4(1)(a) of the Act

“It grants reservation under Article 15(4) to the extent of 12 percent of the total seats in educational institutions including private institutions whether aided or unaided other than minority institutions”.

• Section 4(1)(b) of the Act

“Granting reservation up to 13 percent for Maratha community in total appointment indirect recruitment with respect to public services and posts under the State”.

Conclusion

It is evident from the present judgment that there must be a thin equilibrium to maintain the basic structure of the constitution. Equality is the heart and soul of the Constitution. No legislature should violate the basic principle of equality. The political parties while dealing with sensitive matters like Reservation policies must act wisely.  At some point, the reservation policies must be changed as it has been creating disparities among communities. Meritocracy is meaningless without equality.

Reservation is one of the appropriate positive discrimination mechanisms for the development of historically disadvantageous communities like Scheduled Castes and Scheduled Tribes (SCs and STs) and designated Other Backward Classes (OBC’s). The makers of the Constitution had kept this Reservation policy for a limited period of time. Instead of using it as a remedial measure to curb social inequality, it has become a hindrance for the holistic development of the Nation. 

The real fruits of the reservation are enjoyed by the politically strong people of that community. Allocating quotas often result in more cases of discrimination and hard feelings towards other communities. The purpose of reservation is not to isolate a particular section but to make them part of mainstream society.

Yes, no doubt, the social dynamics have changed drastically but the lives of underprivileged communities have not changed much. The financially sound and well-educated people are the only ones enjoying the fruits of globalization. There is a need for the implementation of economic reservation rather than caste-based reservation. I strongly believe that in the present-day world the only thing that differentiates people from one another is their financial position. The better the financial position, the better the quality of life.

References

• https://www.google.com/amp/s/m.thewire.in/article/law/maratha-reservations-why-scs-verdict-may-still-open-the-door-to-further-litigation/amp
• https://www.insightsonindia.com/2018/08/06/insights-into-editorial-the-warping-of-the-logic-of-reservations/
• http://www.legalservicesindia.com/article/1331/Critical-Analysis-on-Reservation-Policy-in-India.html
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• http://www.odishaviews.com
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• http://www.legalserviceindia.com/articles/res_pro.htm.
• https://www.scobserver.in/court-case/maratha-reservation
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• https://www.google.com/amp/s/lexlife.in/2020/05/07/reservation-in-india-limitations/amp/
• https://www.google.com/amp/s/indconlawphil.wordpress.com/2021/05/06/a-critique-of-the-supreme-courts-maratha-reservation-judgment-i-equality/amp/
• https://indconlawphil.wordpress.com/2021/05/07/a-critique-of-the-supreme-courts-maratha-reservation-judgment-ii-federalism/
• https://indconlawphil.wordpress.com/2021/05/26/guest-post-a-critique-of-the-supreme-courts-maratha-reservation-judgment-iii-the-constitutionality-of-the-102nd-amendment/
• https://www.indiacode.nic.in/handle/123456789/15240?locale=en
• https://main.sci.gov.in/supremecourt/2019/23618/23618_2019_35_1501_27992_Judgement_05-May-2021.pdf
• https://www.scobserver.in/court-case/maratha-reservation

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