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The Maratha empire pioneered the reservation policy in India. During the famous Vedokta controversy (1899-1903), Chhatrapati Shahu Ji Maharaj, the 28-year-old descendant of Chhatrapati Shivaji Maharaj and an English-educated graduate from Rajkumar College, Rajkot, introduced caste-based reservation in his state of Kolhapur on 26 July 1902 for the backward classes that excluded Brahmins, Prabhus, Shenavis, and Parsis, but not the Marathas. Dr B.R. Ambedkar later called Shahu Ji Maharaj the ‘pillar of social democracy in India’. More than a century later, the Marathas are fighting for reservation and to be recognised as the backward classes.

The Supreme Court of India recently referred the petitions challenging Maharashtra’s 2018 law — Socially and Educationally Backward Classes (SEBC) Act, which granted 16 per cent quota to the Maratha community — to a larger constitutional bench. The court also stayed the law’s implementation in the meantime. The Bombay High Court had upheld the law in June 2019, even as it had reduced the quota to 12 per cent in education and 13 per cent in jobs.


Also read: Can states declare a caste as socially, educationally backward? Constitution bench to decide


Constitutional framework

The Constitution framed by Ambedkar adopted the policy of reservation for the Other Backward Classes (OBCs) in government jobs and higher educational institutions by originally enacting Articles 16 (4), 46, 340 and by inserting Article 15 (4) through the first amendment in 1950. Thereafter, several amendments were carried out by Parliament to nullify the Supreme Court’s hostile judgments against reservation. All those amendments relate to the Scheduled Castes and Scheduled Tribes (SC/STs) and their fundamental right to reservation in promotion in government jobs. The Indian Parliament, however, did not enact a single constitutional amendment to protect the interest of OBC/SEBCs from the judicially evolved restrictions of ‘creamy layer’, and ’50 per cent ceiling on reservation’.

Strictly speaking, the Constitution did not define the term ‘socially and educationally backward classes of citizens’, nor did it define ‘any backward class of citizens’ or ‘weaker sections of the people’. The task was also not left upon the commission to be formed under Article 340 of the Constitution. The scope of Article 340 is very limited — it only called upon the President of India to appoint a commission “to investigate the conditions of socially and educationally backward classes” and recommend steps for the central and state governments to remove the difficulties the SEBCs face. This limited scope of Article 340 means that the criteria adopted by the Mandal Commission to identify SEBCs lacks constitutional sanction.

The Mandal Commission, formed on 1 January 1979, submitted its report on 31 December 1980. It identified 3,743 caste and communities as SEBCs. The commission, however, did not include the Maratha. Several commissions were formed by the Maharashtra government thereafter, but none favoured the inclusion of Marathas within the ambit of SEBCs. So, there was an opposition to the Maratha reservation on the ground that the Maratha caste doesn’t qualify as SEBCs under Articles 340, 15 (4) and 16 (4) of the Constitution.


Also read: ‘There are unequals within SCs, STs’ — what Supreme Court said on quota sub-classification


Challenges to Maratha reservation

As argued by NGO Youth for Equality and others before the Bombay High court, there are three broad challenges to Maratha reservation:

1) The Maratha caste does not qualify as SEBCs under several Articles of the Constitution and the community’s claim has been previously rejected by the Mandal and other State Backward Classes commissions.

2) The 12 and 13 per cent reservation to the Marathas would breach the 50 per cent cap on reservation.

3) The Maharashtra legislature lacks the legislative competence to enact the Maratha Reservation Act after the 102nd Amendment to the Constitution came into force on 11 August 2018.

Let’s look at the three challenges in detail.

Maratha caste is not SEBC

The Mandal Commission’s criteria to identify the SEBCs was beyond the scope of Article 340 of the Constitution. According to the plain reading of the Constitution, states can identify the SEBCs by adopting any criteria for purposes of Article 15 (4) & (5), Article 16 (4) of the Constitution.

Mere approval of criteria by the Supreme Court in the 1992 Indra Sawhney case does not preclude the states from adopting different criteria for identification of SEBCs.


Also read: Can Maharashtra backward panel report pacify angry Maratha or is it start of a long battle?


50% quota ceiling would be breached

The 50 per cent ceiling and creamy layer are judicially evolved concepts that are yet to be recognised, approved or codified by Parliament to give them legislative sanction. Articles 15 (4) & (5), 16 (4) do not provide for 50 per cent ceiling in reservation and provisions to establish a ‘creamy layer’. Therefore, the restrictions imposed by the Supreme Court in the case of Maratha reservation has no legislative sanction.

Articles 245, 246, 248, 249, 250, 251, 252, 253, and 254 of the Constitution have provided  Parliament and state legislatures the powers to make laws. The executive powers of the Centre under Article 73 and of the states under Article 162 are subject to the laws made by Parliament/state assembly. The emergent legislative powers of the President under Article 123 and of the state governor under Article 213 are subject to the ratification of Parliament and state legislature, respectively. Articles 256 and 257 provide for the binding effect of the laws upon the central and state governments.

Therefore, we have a legislative mechanism in our Constitution that cannot be diminished by the Supreme Court through recourse to Article 141, which says: “The law declared by the Supreme Court shall be binding on all courts within the territory of India.” This connotes that we should not read legislatures when reading this Article.

Moreover, Article 142 of the Constitution grants power to the Supreme Court to pass any decree or order to do complete justice while exercising any of its jurisdiction, but that decree or order will not be enforceable unless it is ratified by Parliament by enacting an Act, or the President by passing an appropriate order in the absence of an Act of Parliament. Thus, we can safely assume that the Constitution prevented the Supreme Court from becoming the parallel or super legislature.

Another instance of the legislative supremacy of Parliament/legislature in their respective sphere is Article 144 of the Constitution, which commands for all authorities — civil and judicial — to act in aid of the Supreme Court. However, it doesn’t envisage its command against the legislative authorities under the Constitution.

Apart from that, the Supreme Court’s Indra Sawhney judgment of 1992, in para 859 (6) (a), makes it abundantly clear that the 50 per cent ceiling in reservation is not a strict rule. It is also important to note that Maharashtra, through quantifiable data, has made out a special case for breaching the 50 per cent ceiling in the case of Maratha reservation.


Also read: There are glaring flaws in SC judgment excluding SC/ST creamy layer from reservations


Competence of state legislature

Maharashtra enacted two legislations, first in 2014 and second in 2018, to make provisions for reservation for the Educationally and Socially Backward Category (ESBC), and Social and Educational Backward Classes (SEBC), respectively. Both included Maratha caste.

The 2014 enactment was well within the competence of the state legislature because the 102nd Amendment to the Constitution did not exist at the time. However, when Maharashtra enacted the 2018 legislation, the BJP’s Devendra Fadnavis government knew well that there is no legislative competence to enact a law specifying SEBC since the power to specify the SEBC had been exclusively delegated to the President under the 102nd Amendment. This is identical to the powers of the President with respect to the specification of SC/STs under Article 341 and 342 of the Constitution, respectively. So, any amendment to include or exclude the caste/community from the SEBCs can only be effected by Parliament alone.

Also, the subject matter or legislative entry pertaining to Backward Classes or OBC/SEBCs is not enumerated in any of the lists of the Seventh Schedule to the Constitution. Therefore, by virtue of Article 248 of the Constitution, Parliament and the central government, and not the state legislatures or state governments, have the legislative and executive competence over the specification of OBC/SEBCs.

That’s why Maharashtra’s 2018 legislation is beyond the competence of the state legislature, even though its validity was upheld by the Bombay High Court last year.


Also read: It’s a puzzle why VP Singh was never accepted by OBCs even after Mandal Commission


How Maharashtra govt can save Maratha quota

Since the power to specify the SEBCs is now exclusively vested with the President of India, the governor of Maharashtra can send a fresh list of SEBCs — with the Maratha caste included in it — to the President to specify them as SEBCs under Article 342A of the Constitution in relation to Maharashtra state.

The Maharashtra legislature can pass a resolution requesting Parliament and the Narendra Modi government to amend the Constitution to nullify the 50 per cent ceiling on reservation under Articles 16 (4), (15) (4) of the Constitution.

Once the President has approved, Maharashtra can then bifurcate the list into SEBCs and extremely SEBCs, if it is permissible, for the purposes of implementing reservation, and grant 12 per cent separate reservation to the Maratha caste as SEBCs.

Nitin Meshram is a lawyer who appears in the Supreme Court and several high courts. He tweets @jaibhimworld. Views are personal.

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