New Delhi: In striking down the Maharashtra law granting reservation to the Maratha community in education and government jobs in the state, the Supreme Court retained the 50 per cent limit on quota, but ruled that after the 102nd Constitutional amendment, state governments do not have the power to identify socially and educationally backward classes (SEBCs).
In doing so, the court has laid the groundwork for new SEBC list for all states and union territories (UTs) to be notified by the President.
The five-judge bench was unanimous on three issues and split 3:2 on another three. Justice Ashok Bhushan wrote the majority opinion — for himself and Justices S. Abdul Nazeer, L. Nageswara Rao, Hemant Gupta and Ravindra Bhat — on the points that all the judges concurred on.
The majority opinion on the issue of states’ powers to identify SEBCs was authored by Justice Ravindra Bhat, on behalf of himself and Justices Gupta and Rao. Justice Bhushan and Nazeer dissented.
All the five judges concurred on retaining the 50 per cent limit on reservations — as set by the landmark Indra Sawhney case. A nine-judge bench had in that case held that extreme caution has to be exercised and a special case must be made out for exceeding the 50 per cent limit. They also concurred on striking down the Maratha quota as unconstitutional.
However, the bench split 3:2 on the question of the interpretation of Articles 338B and 342A, inserted by Constitution (102nd Amendment) Act 2018.
The 102nd amendment gives constitutional status to the National Commission for Backward Classes. Article 338B deals with the structure, duties and powers of the commission while 342A gives the President the power to notify a class as SEBC and the power of Parliament to alter the central SEBC list.
The majority verdict on the interpretation of these provisions ruled that states, in fact, do not have the power to identify SEBCs after the 102nd amendment.
In doing so, Justice Bhat noted that while it has been two years since the Constitutional amendment, the central government has not notified a list under the newly added provision.
The court, therefore, held that the President should “expeditiously” publish list of SEBCs for different states and UTs, under Article 342A, after consultation with the commission set up under Article 338B.
Only till the time this is done that the SEBC lists made by the states would continue to hold the field. This direction, it said, was being issued under Article 142 of the Constitution — orders “necessary for doing complete justice”.
It clarified that this was being done to avoid the “drastic consequences which would flow if it is held that all State lists would cease to operate” and to not “leave a vacuum” with respect to SEBC’s entitlement to claim benefits under the Constitution.
‘Society based on caste rule, not equality’
One of the major issues before the court was whether the Indra Sawhney judgment should be revisited, with the state governments demanding that it must be referred to a 11-judge bench for reconsideration since it laid down an arbitrary ceiling which the Constitution does not envisage.
While refusing to change the 50 per cent limit placed on quota, the court now asserted that “to change the 50 percent limit is to have a society which is not founded on equality but based on caste rule”.
There were a total of 10 grounds that were raised for revisiting the Indra Sawhney judgment to a larger bench. However, the Supreme Court did not consider any of these grounds to be valid, noting that the 50 per cent ceiling was now constitutionally recognised.
The Indra Sawhney judgment, the court noted, has been repeatedly followed by the Supreme Court and has been approved by at least four Constitution benches. It, therefore, asserted that the verdict “has stood the test of time and has never been doubted”.
The court further asserted that this 50 per cent rule “is to fulfil the objective of equality” as guaranteed by Article 14 of the Constitution, which consists of Articles 15 (prohibition of discrimination) and 16 (quality of opportunity in public employment) as “facets”. The 50 per cent limit, it said, was to “attain the objective of equality”.
The court was dealing with a challenge to the Maharashtra State Reservation for Socially and Educationally Backward Classes Act (SEBC Act) of 2018.
The law declared Marathas to be a ‘socially and educationally backward class’ and provided them with reservations of 16 per cent in educational institutions, including private institutions, and in public services. The law was based on a report submitted by the Maharashtra State Backward Class Commission under the chairmanship of Justice N.G. Gaikwad.
While the Bombay High Court upheld the law in June 2019, it reduced the quantum of the quota to 12 per cent in education and 13 per cent in jobs, as recommended by the commission.
The Maharashtra law also increased the total reservation to over 50 per cent. According to the Bombay HC judgment, the final reservation after adding the 12 and 13 per cent quota increased the total reservation in educational institutions to 64 per cent and government jobs to 65 per cent in the state.
‘Marathas mainstream in national life’
The court now opined that the Gaikwad commission had not shown sufficient grounds to breach the 50 per cent rule for the Maratha community, asserting that the “Marathas are in the mainstream of the National Life” and that “it is not even disputed that Marathas are politically dominant caste”.
Since it held that no extraordinary circumstances were present to grant separate reservation for the Maratha community by exceeding the 50 per cent threshold, the 2018 Act “violates the principle of equality enshrined in Article 16”, and also Article 14.
The court also found that the commission had made “mistakes” in computing the percentage of Marathas in various posts in government jobs, by taking it as a percentage of the total available posts and not as a percentage of the posts available in the open category.
Taking note of the actual numbers, the court felt that the representation of Marathas in public services is “adequate and satisfactory”, for purposes of Article 16(4) which allows the State to make reservations for backward classes who are not “adequately represented in the services of the State”.
‘States have no power to identify SEBCs’
While Attorney General K.K. Venugopal, appearing for the central government, submitted that the intention of the law was not to take away the states’ powers, the majority opinion did not agree with this.
The three judges opined that the language used in Article 342A makes it clear that the President, after consultation with the Governor of a state or UT, may issue a public notification specifying socially and educationally backward classes. It is those socially and educationally backward classes who shall be deemed as socially and educationally backward classes in relation to that state or UT under the Constitution.
Therefore, the majority asserted that there will only be one list of socially and educationally backward classes, which may be issued by the President.
But, it clarified that the power on “the extent of reservations, the kind of benefits, the quantum of scholarships, the number of schools which are to be specially provided under Article 15(4) or any other beneficial or welfare scheme which is conceivable under Article 15(4) can all be achieved by the State through its legislative and executive powers”.
The states, it said, “can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission under Article 338B, for inclusion, exclusion or modification of castes or communities, in the list to be published under Article 342A (1)”.
The two dissenting judges, however, opined that “it is clear as sunlight that…the intention of the Parliament for bringing the Constitutional amendment was not to take away the power of the State to identify backward class in the State”. The amendment, they said, was actually intended to “eliminate any kind of political factor to play with regard” to the Central list.