A five-judge Constitution Bench of the Supreme Court, examining the Maratha quota law, sought the assistance of Attorney General K.K. Venugopal on Wednesday to decide whether a State legislature can specify a particular community as “socially and educationally backward” for granting reservation benefits in education and jobs.
The Bench led by Justice Ashok Bhushan will examine if the Maharashtra legislature had violated the Constitution (One Hundred Second Amendment) Act of 2018 to provide the Maratha community reservation benefits in the State.
The Constitution Amendment Act introduced Articles 338B and 342A in the Constitution. Article 338B deals with the newly established National Commission for Backward Classes. Article 342A empowers the President to specify the socially and educationally backward communities in a State. It says that it is for the Parliament to include a community in the Central List for socially and backward classes for the grant of reservation benefits.
However, the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018 has, despite these Constitutional amendments, gone ahead and declared the Marathas as socially and educationally backward.
“We are of the view that looking into the issues raised in this appeal and the consequences to the followed, it is necessary that final hearing of this appeal be completed as early as possible. One of the issues before this Constitution Bench being interpretation of Constitution (One Hundred Second Amendment) Act, 2018, let a notice be issued to the Attorney General for India,” the Constitution Bench directed on its first day of hearing.
During the hearing, senior advocate Mukul Rohatgi, for the Maharashtra government, said the 50% restriction on reservation is “not cast in stone”.
The inclusion of the Marathas within the quota bracket has taken the total reservation granted in Maharashtra well over the 50% limit set by the Supreme Court’s historic judgment in the Indira Sawhney case of 1992. The 1992 judgment had said the quota limit should be fixed at 50% unless it was an “extraordinary situation”.
The Maratha quota law, based on a report of the Maharashtra State Backward Classes Commission under the Chairmanship of Justice N.G. Gaikwad, was upheld by the Bombay High Court in June 2019. The High Court had, however, reduced the quantum of reservation for Marathas from 16% to 12% in education, and 13% in employment. A flurry of petitions had challenged the High Court’s decision in the apex court.
In September, a three-judge Bench of the Supreme Court referred the petitions to the Constitution Bench but said that the Marathas, who comprise 30% population of the State, cannot be termed a marginalised community.
“Applying the law laid down by this Court in Indra Sawhney (Mandal Commission judgment of 1992), we are of the prima facie opinion that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50%,” the three-judge Bench led by Justice L. Nageswara Rao gave its prima facie opinion in a judgment on September 9.
Senior advocate Kapil Sibal, for an applicant sympathetic to the State government, said reservation in 2020 cannot be decided on the basis of data of 1992.
Mr. Sibal said the Constitution Bench’s decision ultimately would have a “huge impact” on several States, including Tamil Nadu, which gives reservation in excess of the 50% mark. He urged the court to refer the petitions further to a 11-judge Bench, numerically superior to the nine-judge Bench which decided the Mandal case in 1992.
The Constitution Bench scheduled a hearing on January 25, 2021.