By Gautam Kumar
The prolonged debate on the reservation to Marathas was laid to rest on May 5th, 2021, when the Constitution Bench of the Supreme Court comprising Justice Ashok Bhushan, Justice L. Nageswara Rao, Justice S. Abdul Nazeer, Justice Hemant Gupta, and Justice S. Ravindra Bhat in ‘Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra’ unanimously struck down the Maratha reservation quota. The bench held that the 50% ceiling provided in the Indra Sawhney case need not be revisited. Further, the judgment observed that the Gaikwad Commission and the judgment by Bombay High Court or even the Socially and Educationally Backward Classes Act, 2018 fails to lay out any “extraordinary situation” to fall within the exception to this limit and hence declared the quota – unconstitutional.
The Supreme Court read down section 2 (j), section 4 (1) (a), and section 4 (1) (b) of the Socially and Educationally Backward Classes Act, 2018 to be ultra vires to the Constitution. Section 2 (j) declares Maratha community educationally and socially backward category, section 4 (1) (a) of the act grants reservation under Article 15 (4) to the extent of 12% of total seats in educational institutions and section 4 (1) (b) grants reservation of 13% to the Maratha community of total appointments in direct recruitment in public services and posts under the state.
The Maharashtra government based on the recommendation of the Justice Gaikwad commission (the commission had recommended 12% reservation for Maratha community in educational institutions and 13% reservation in appointments in government jobs), passed the Socially and Educationally Backward Classes Act, 2018. The act provides 16% reservation for the Marath community in educational institutions and appointments in the state of Maharashtra.
The said act was challenged before the Bombay High Court stating that it is unconstitutional as it breaches the 50% ceiling provided in the Indra Sawhney case. Other arguments include violation of Articles 14, 16, and 19 for creating a separate class outside ‘Other Backward Classes’ to provide reservation for the Maratha community.
The High Court upheld the validity of the act in 2019 but observed that the act should not exceed the limit of 12% and 13% reservation as recommended by the Gaikwad commission.
An appeal was filed before the Supreme Court against the judgment of the Bombay High Court. The Court framed six issues to be addressed:
1. Whether judgment in the case of Indra Sawhney v. Union of India needs to be referred to a larger bench or require re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society, etc.?
2. Whether Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case?
3. Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney?
4. Whether the Constitution 102nd deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?
5. Whether State’s power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?
6. Whether Article 342A of the Constitution abrogates State’s power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy/structure of the Constitution of India?”
The arguments, in this case, got completed on 26th March, and judgment was reserved by the Court. The Judgment in the case is delivered by Justice Ashok Bhushan (for himself and Justice S. Abdul Nazeer), Justice Nageswara Rao, Justice Hemant Gupta, and Justice Ravindra Bhat. In this post, we explore the rationale of the Judgment on broadly three issues i.e, Firstly on the ceiling of 50%, Secondly on Gaikwad Commission Report and Thirdly whether exceptional circumstances exist to grant reservations to Marathas.
On ceiling limit of 50%
Referring to the judgment of Indra Sawhney, Justice Bhushan held (para 184) that “ceiling limit of 50% for reservation as approved by Indra Sawhney’s case is a law within the meaning of Article 141 and is to be implemented by all concerned.”
Justice Bhushan in para 164 (page 143) of the judgment observed “To change the 50% limit is to have a society which is not founded on equality but based on caste rule. Democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above the 50% limit which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same. Thus, answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets.”
Justice Bhushan has further observed that “providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class” and urged the State to bring other measures like providing educational facilities to the members of backward class free of cost, giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be self-reliant.
On Gaikwad Commission’s report
While deciding on the question, whether Gaikwad Commission Report has made out a case of extra-ordinary situation for grant of separate reservation to Maratha community exceeding 50% limit or not, Justice Bhushan held “we are of the considered opinion that neither the Gaikwad Commission’s report nor the judgment of the High Court has made out an extra-ordinary situation in the case of Maratha where ceiling of 50% can be exceeded. We have already noticed the relevant discussion and conclusion of the Commission in the above regard and we have found that the conclusions 212 of the Commission are unsustainable. We, thus, hold that there is no case of extra-ordinary situation for exceeding the ceiling limit of 50% for grant of reservation to Maratha over and above 50% ceiling of reservation.”
On exceptional circumstances for providing Maratha reservation
The Court while deciding on whether the state has made out any exceptional circumstances to breach the 50% limit observed: “no extraordinary circumstances have been made out on the basis of reasoning given in the report.” The Court also raised doubt on the findings of the Gaikwad Commission and observed that “we are of the view that the conclusion drawn by the Commission is not supportable from the data collected. While the foundation itself is unsustainable, the formation of opinion by the State Government to grant separate reservation to the Marathas exceeding 50 percent limit is unsustainable.”
On Indra Sawhney being shackle to the legislature
To the submission made by Senior Advocate Kapil Sibal that the judgment of Indra Sawhney is a shackle to the legislature in enacting the law. Justice Bhushan observed that “When the law is laid down by this Court that reservation ought not to exceed 50% except in extraordinary circumstances all authorities including legislature and executive are bound by the said law. There is no question of putting any shackles. It is the law which is binding on all.”
On affirmative action other than reservation
Justice Ravindra Bhat in a separate but concurring judgment emphasised the possibilities for affirmative action other than reservation. He observed “it is time that the states and the Union government gather data about the extent and reach of the existing schemes for employment, and in the field of education, take steps to ensure greater access, by wherever necessary, increasing funding, increasing the number and extent of coverage of scholarships, and setting up all manner of special institutions which can train candidates aspiring for higher education, to increase their chances of entry in admission tests, etc. Likewise, innovative employment incentives to the private sector, especially in the manner of employment in contracts or projects awarded by the state or its instrumentalities, need to be closely examined and implemented. These welfare measures can also include giving tax incentives to schemes that fund scholarships and easy (or interest free) loans to SC, ST and SEBC students, which can enhance their access to educational institutions.” (para 69, page 475)
1. Reservation under Article 16(4) should not exceed 50%.
2. When the Constitution Bench in Indra Sawhney held that 50% is the upper limit of reservation under Article 16(4), it is the law which is binding under Article 141 and to be implemented.
3. The 50% rule spoken in Balaji and affirmed in Indra Sawhney is to fulfill the objective of equality as engrafted in Article 14 of which Articles 15 and 16 are facets. 50% is reasonable and it is to attain the object of equality. To change the 50% limit is to have a society which is not founded on equality but based on caste rule.
4. Cap on the percentage of reservation as has been laid down by Constitution Bench in Indra Sawhney is with the object of striking a balance between the rights under Article 15(1) and 15(4) as well as Articles 16(1) and 16(4). The cap on percentage is to achieve the principle of equality and with the object to strike a balance which cannot be said to be arbitrary or unreasonable.
5. The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this Court. The Constitution Bench judgment of this Court in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration.
6. No extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50% ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of the ceiling limit without there being any extra-ordinary circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.
7. The constitutional precondition as mandated by Article 16(4) being not fulfilled with regard to Maratha class, both the Gaikwad Commission’s report and consequential legislation are unsustainable.
Implications on 102nd Constitutional Amendment
The bench on whether states were competent to identify the Backwardness (Social or educational) in their jurisdiction answered negatively by a majority of 3:2. This therefore in extension upholds the insertion of Article 342A by the 102nd Constitutional Amendment which locates exclusive competence to decide backwardness in Central government.
(Gautam is a final year law student at UPES School of Law, Dehradun and a contributor at TA. He tweets at @stoic_gautamkr)
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