Mumbai: The Maharashtra State Assembly and legislative Council have passed a Bill to grant 16 per cent reservation in jobs and admissions in academic institutions to the Marathas.
This raises the percentage of quota for SCs/STs and other backward classes (OBCs) in Maharashtra from 52 to 68 per cent, which is against the Supreme Court ruling in the Indra Sawhney case that the total reservation for SC/ST and OBCs or special categories should not exceed 50 per cent.
Immediately after the Maharashtra Legislators unanimously passed the Bill on Thursday (29 November 2018) to grant reservation to Marathas, All India Majlis-e-Ittehadul Muslimeen (AIMIM) chief Asaduddin Owaisi raised the pitch for quota even for Muslims.
There are two fundamental issues for the consideration of the Apex Court in this matter:
1. Is it proper for States such as Tamil Nadu and now Maharashtra to exceed the 50 per cent cap on reservations and put the same in the Ninth Schedule of the Constitution¹ to avoid judicial review; and
2. When the Supreme Court has fixed a 50 per cent cap, should not the candidates availing reservation be kept within the ambit of the quota and the balance 50 per cent be kept for unreserved candidates only. The thumb rule should be straight and without ambiguity. Political parties, both ruling and in the Opposition, should ensure overall reservation does not exceed 50% as laid down by the Supreme Court of India, and anybody applying for a seat or job under the quota shall not be eligible for general merit seat. Raising the quota limit beyond 50 per cent is unfair, unjust and discriminatory against those not covered by any quota though they may be economucally diadvantaged.
The quota system in its present form is causing reverse social discrimination and it leads to more and more forward communities clamouring for Other Backward Classes (OBC) status and Governments succumbing due to electoral pressures.
¹The Ninth Schedule was added to the Constitution when it was first amended in 1951 when Jawaharlal Nehru was Prime Minister.
Since the First Amendment, the Ninth Schedule has been relied upon to amend the constitution multiple times.
In January 2007,the apex Court of India ruled that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violated the basic structure of the constitution.
Artcile 31B, was inserted by the Constitution (First Amendment) Act, 1951. It says: Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall,
subject to the power of any competent Legislature to repeal or amend it, continue in force.
Article 31C, Inserted by the Constitution (Twenty-fifth Amendment) Act, 1971 says: Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:
Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.