Maratha Reservation unconstitutional| The timeline of the case and the 3 questions that received unanimous opinions of all 5 judges

Supreme Court: In a big development, the 5-judge bench of Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has quashed the much in debate Maratha Reservation and has held that the 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 [ 2018 Act] as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney[1]’s case.

Questions framed

1. Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench?
2. Whether the 2018 Act 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 Amendment 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. WhetherArticle 342A of the Constitution abrogates States 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?]

While all judges agreed with the opinion of Justice Bhushan on Question Numbers 1, 2 and 3, Justice L. Nageswara Rao and Hemant Gupta agreed with Justice Ravindra Bhat’s opinion on Question Numbers 4, 5 and 6. Justice L. Nageswara Rao also wrote a separate opinion.[2]

Timeline and trajectory

• The “Maratha” is a Hindu community which mainly resides in the State of Maharashtra.
• After the enforcement of the Constitution of India, the President of India in exercise of power under Article 240 appointed a Commission to investigate the conditions of all such socially and educationally backward classes, the first National Commission for backward classes did not find Maratha as other backward class community in the State of Bombay and stated,

“In Maharashtra, besides the Brahman it is the Maratha who claimed to be the ruling community in the villages, and the Prabhu, that dominated all other communities”.

• The Maratha was included in forward Hindu caste, by the second National Backward Classes Commission.
• The National Commission for Backward Classes conducted public hearing at Mumbai and after hearing Government officials, Chairman of the Maharashtra State Backward Classes Commission submitted a detailed report dated 25.02.1980 holding that Maratha is not a socially and educationally backward class community but a socially advanced and prestigious community.
• The Maharashtra State OBC Commission headed by Justice R.M. Bapat submitted a report on 25.07.2008 conclusively recording that Maratha could not be included in the OBC list because it is a forward caste. The review of the findings was rejected on 03.06.2013.
• Despite the existence of statutory State OBC Commission, the Government of Maharashtra appointed a special Committee headed by a sitting Minister, Shri Narayan Rane to submit a report on the Maratha Caste. On 26.02.2014 Rane Committee submitted its report to the State and recommended that for the Maratha special reservation under Article 15(4) and 16(4) of the Constitution of India be provided.
• On 09.07.2014 Maharashtra Ordinance No.XIII of 2014 was promulgated providing for 16% reservation in favour of the Maratha caste.
• The Maharashtra Legislature passed the Act, 2014 on 23.12.2014 which received the assent of the Governor on 09.01.2015 and was deemed to have come into force with effect from 09.07.2014.
• On 14.08.2018 the National Commission for Backward Classes (Repeal) Act was passed repealing the National Commission for Backward Classes Act, 1993.
• On 15.08.2018 the Constitution (102nd Amendment) Act, 2018 was brought into force adding Article 338B, 342A and 366(26C). Article 338, sub-clause (10) was also amended.
• On 15.11.2018, the State Backward Classes Commission submitted its report declaring Maratha caste of citizens as social and economic backward class of citizens with inadequate representation in services.
• The Government after receipt of the above report enacted Act, 2018 which was published on 30.11.2018.

Revisiting Indira Sawhney judgment

The crux of 6 separate judgments delivered by the 9-judge bench in the case was:

(i) Reservation under Article 16(4) should not exceed 50%.

(ii) For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which extreme caution is to be exercised.

All 5 judges in the present case agreed that there was no need to revisit the ratio laid down in the landmark judgment in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC.

“To change the 50% limit is to have a society which is not founded on equality but based on caste rule. The democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 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.”

The bench also noticed that the judgment of Indra Sawhney is being followed for more than a quarter century without there being any doubt raised in any of the judgments about the 50%, the 50% rule has been repeatedly followed.

“There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone.”

The “misunderstanding” in the MC Gaikwad report

The Commission relied on the Constitution Bench judgment in M. Nagaraj and took the view that on the quantifiable data ceiling of 50% can be breached. It hence noted,

“Based on the population of 30%, Commission has arrived at a conclusion that the total percentage of State population which is entitled for the constitutional benefits and advantages as listed under Article 15(4) and Article 16(4) would be around 85% and this is a compelling extra-ordinary situation demanding extra-ordinary solution within the constitutional framework. …”

However, the Constitution Bench in M. Nagaraj has noticed majority opinion in Indra Sawhney has held that rule of 50% was a binding rule and not a mere rule of prudence.

The Constitution bench had held that,

“The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

The Constitution Bench, thus, had clearly laid down that even reservation for promotion, ceiling of 50% limit cannot be breached. Hence, the Commission has completely erred in understanding the ratio of the judgment.

“The Marathas are dominant forward class and are in the main stream of National life.”

2019 Amendment granting separate reservation to Maratha Community unconstitutional

The Court noticed that no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 percent ceiling limit of reservation. The 2018 Act violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any exceptional circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.

“The statement and object of the bill clearly indicates that the State has formed the opinion on the basis of the report of the Commissions and had accepted the reasons given by the Commission holding that extraordinary circumstances for exceeding the ceiling limit is made out.”

Directions

• The admissions insofar as Postgraduate Medical Courses which were already held not to affect by order dated 09.09.2020, which shall not be affected by this judgment. Hence, those students who have already been admitted in Postgraduate Medical Courses prior to 09.09.2020 shall be allowed to continue.
• The admissions in different courses, Medical, Engineering and other streams which were completed after the judgment of the High Court dated 27.06.2019 till 09.09.2020 are saved. Similarly, all the appointments made to the members of the Maratha community in public services after the judgment of the High Court dated 27.06.2019 till order passed by this Court on 09.09.2020 are saved. However, no further benefit can be claimed by such Maratha students admitted in different course or Maratha students who were appointed in public services in the State under Act, 2018.
• After the order was passed on 09.09.2020 neither any admission can be taken in the educational institutions nor any appointment can be made in public services and posts in accordance with Act, 2018.

[ Dr. Jaishri Laxmanrao Patil v. The Chief Minister, 2021 SCC OnLine SC 362, decided on 05.05.2021]

Judgment by: Justice Ashok Bhushan, Justice L. Nageswara Rao and Justice S. Ravindra Bhat

Appearances before the Court:

K.K. Venugopal, Attorney General for India and Tushar Mehta, Solicitor General.

Senior Advocates Arvind Datar, Gopal Sankaranarayanan, Mukul Rohatgi, Shekhar Naphade, P.S. Patwalia, Kapil Sibal, Dr. Abhishek Manu Singhvi, Dr. Manish Singhvi, C.U. Singh, V. Shekhar, S. Niranjan Reddy, Jayanth Muth Raj, Jaideep Gupta and Mahalakshmi Pavani

Advocates Manish Kumar, Karan Bharihok, Vinay Arora, Arun Bhardwaj, Amit Kumar, Pradeep Misra, Tapesh Kumar Singh, Diksha Rai, A.P. Singh, Shriram Pingle, V.K. Biju, Hrishikesh s. Chitaley, Kaleeswaram Raj, Ashok Arora and Akash Avinash Kakade.

[1] Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217

[2] The analyses of question number 4 to 6 will be dealt with in separate post.