Supreme Court strikes down reservation for Marathas in Maharashtra

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New Delhi: The Supreme Court on Wednesday 5 May passed an order which says that no extraordinary circumstances were made out by the Maharashtra Government in granting separate reservation of Maratha Community by exceeding the 50 per cent ceiling limit of reservation. The Act, 2018 violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any extra-ordinary circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.

Supreme Court of India in a Judgement on Wednesday 5 May 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 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’s case.

The exceeding of ceiling limit without there being any extra-ordinary circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires – Supreme Court

The order by a five-judge Supreme Court bench, comprising Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta, and Ravindra Bhat, has come in response to an appeal filed against the judgement of the High Court in PIL NO.175 of 2018 by Dr. Jaishri Laxmanrao Patil questioning the 16% separate reservation given to Maratha under Act, 2018 published on 30 November 2018. The writ petitioner pleaded that providing reservation to Maratha community to the extent of 16% amounts to breach of Article 14, 16 and 21 of the Constitution of India and also bypassing ceiling of reservation of 50%. Referring to judgement of this Court in Indra Sawhney’s case and law laid down in Mr. Nagraj and others vs. Union of India & Ors. (2006) 8 SCC 212.

The report of the Maharashtra State Backward Class Commission (Gaikwad Commission) dated 15 November 2018 became the basis for granting separate reservation to the Maratha community by exceeding the 50 percent ceiling limit.

The Supreme Court order says that neither the Gaikwad Commission’s report nor the judgement of the High Court has made out an extra-ordinary situation in the case of Maratha where ceiling of 50% can be exceeded. It has been underscored that there is no case of extra-ordinary situation for exceeding the ceiling limit of 50% for grant of reservation to Maratha over and above 50% ceiling of reservation.

On the question, whether the Act, 2018, as amended in 2019 granting separate reservation for Maratha Community by exceeding ceiling of 50 percent makes out exceptional circumstances as per the judgment of Indra Sawhney case, the apex court order draws attention to Section 2(j) of the 2018 Act. In Section 2(j), the Maratha Community has been declared and included in the educationally and socially backward category and under Section 4(1), 16 percent (12 percent as per 2019 Amendment Act) of the total seats in educational institutions including private educational institutions, other than minority educational institutions are reserved and 16 percent (13 percent as amended by 2019 Act) of total appointment in direct recruitment in public services and posts.

On 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 and whether, States’ 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 – on these two interrelated points of reference, the supreme Court has said:

(i) By introduction of Articles 366 (26C) and 342A through the 102nd Constitution of India, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.
(ii) The states 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).
(iii) The reference to the Central List in Article 342A (2) is the one notified by the President under Article 342A (1). It is to be the only list for all purposes of the Constitution, in relation to each state and in relation to every union territory. The use of the term “the Central List” is only to refer to the list prepared and published under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of SEBCs. Once published, under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2).
(iv) In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act).
(v) The states’ power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed.
(vi) The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.
(vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes purposes of the Constitution, in relation to each state and in relation to every
union territory. The use of the term “the Central List” is only to refer to the list prepared and published under Article 342A (1), and no other; it does not imply that the states have any manner of power to publish their list of SEBCs. Once published, under Article 342A (1), the list can only be amended through a law enacted by Parliament, by virtue of Article 342A (2).
(iv) In the task of identification of SEBCs, the President shall be guided by the Commission set up under Article 338B; its advice shall also be sought by the state in regard to policies that might be framed by it. If the commission
prepares a report concerning matters of identification, such a report has to be shared with the state government, which is bound to deal with it, in accordance with provisions of Article 338B. However, the final determination culminates in the exercise undertaken by the President (i.e. the Central Government, under Article 342A (1), by reason of Article 367 read with Section 3 (8) (b) General Clauses Act).
(v) The states’ power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed.
(vi) The Commission set up under Article 338B shall conclude its task expeditiously, and make its recommendations after considering which, the President shall expeditiously publish the notification containing the list of SEBCs in relation to states and union territories, for the purpose of the Constitution.
(vii) Till the publication of the notification mentioned in direction (vi), the existing lists operating in all states and union territories, and for the purposes.

The Supreme Court has held that that clause (4) of Article 16 of the Constitution is not exception to clause (1) of Article 16. It is an instance of classification as laid down by the Constitution Bench in Indra Sawhney case. Proceeding on the premise that Article 16(4) is not an exception to Article 16(1), the Supreme Court has held that Article 16(4) is a facet to Article 16(1) and permits reasonable classification as is permitted by Article 14.

During the procceding of this case, relying on Constitutional 77th and 81st Amendment Acts Senior advovcate Mukul Rohatgi submitted that these amendments have the effect of undoing in part the judgment of Indra Sawhney which necessitates revisiting of the judgment. By the 77thConstitutional Amendment Act, 1995, sub-clause (4A) was inserted in Article 16 of the Constitution. The above Constitutional Amendment was brought to do away the law laid down by the apex Court in Indra Sawhney case that no reservation in promotion can be granted. By virtue of sub-clause 4A of Article 16 now, the reservation in promotion is permissible in favour of Scheduled Caste, Scheduled Tribe. The ratio of Indra Sawhney to the above effect no longer survives and the Constitutional provisions have to be give effect to.

The apex court has held there is no substance in any of the 10 grounds urged by Rohatgi and Kapil Sibal for revisiting and referring the judgment of Indra Sawhney to a larger Bench. The judgment of Indra Sawhney has stood the test of the time and has never been doubted by any judgment of this Court. The Constitution Bench judgment of this Court in Indra Sawhney neither needs to be revisited nor referred to a larger Bench for consideration. (13) The Constitution Bench in M. Nagaraj does not contain any ratio that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to backwardness. On this the Supreme Court has categorically held that there can be no case for revisiting the Indra Sawhney judgment on this ground.

Coming to 81st Constitutional Amendment Act, 2000, by which sub-clause (4B) was inserted in Article 16. The above provision was also to undo the ratio laid down by the Indra Sawhney judgment regarding carry forward vacancies. The Constitutional Amendment laid down that in unfilled vacancies of year which was reserved shall be treated as separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determine the ceiling of 50 percent. Article (4B) is for any reference is quoted as below:

16(4B): “Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

The Supreme Court has underscored the above Constitutional Amendment makes it very clear that ceiling of 50 percent “has now received Constitutional recognition.” Ceiling of 50 percent is ceiling which was approved in Indra Sawhney’s case, thus, the Constitutional Amendment in fact recognize the 50 percent ceiling which was approved in Indra Sawhney’s case and on the basis of above Constitutional Amendment, no case has been made out to revisit Indra Sawhney.

Rohtagi also submitted that judgment of Indra Sawhney held that the States cannot identify the backward classes solely on the basis of economic criteria as Indra Sawhney has set aside the office memo of 13 August 1990 which provided 10 percent reservation to economically weaker section. The submission of Rohtagi was that by 103rd Constitutional Amendment, Parliament has inserted Article 15(6) and 16(6) whereby 10 percent reservation is granted to economically weaker section. It was submitted before the court that in view of the 10 percent reservation as mandated by 103rd Constitutional amendment, 50 percent reservation as laid down by Indra Sawhney is breached. Rohtagi further submitted that the issue pertaining to 103rd Constitutional Amendment had been referred to a larger Bench in W.P. (Civil) No.55 of 2019, Janhit Abhiyan versus Union of India. In view of this the Supreme Court in the instant case has refrained from making any servation regarding effect and Constitutional Amendment.

The Maharashtra State Backward Class Commission relied on the Supreme Court order in the M Nagaraj case laying down that ceiling of 50% reservation may be exceeded by showing quantifiable contemporary data relating to the backwardness. The present order of the apex court says that the above reading of Constitution Bench judgment by the Commission was wholly incorrect. We may again notice the judgment of M. Nagaraj in the above respect. M. Nagaraj was a case where Constitution (Eighty-fifth Amendment) Act, 2001 inserting Article 16(4A) was challenged on the ground that the said provision is unconstitutional and violative of basic structure. Article 16(4A) which was inserted by the above Amendment provides: “Article 16(4A). Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.”

The Constitution bench has given the ruling: “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. 232. The above observation regarding quantifiable data was in relation to enabling power of the State to grant reservation in promotion to the Scheduled Caste and Scheduled Tribes. It is further relevant to notice that in the last sentence of paragraph 123 it is stated: “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 indefinitely”.

The seven Judge Constitution Bench in N.M. Thomas case held that Article 16(4) is not an exception to Article 16(1) which was noticed in paragraph 713 of the judgment of Indra Sawhney. Justice B.P. Jeevan Reddy in paragraph 733 said “At this stage, we see to clarify one particular aspect. Article 16(1) is a facet of Article 14, just as Article 14 permits reasonable classification, so does Article 16(1)”. In paragraph 741 following was laid down: “(para) 741. ….In our respectful opinion, the view taken by the majority in Thomas [(1976) 2 SCC 310, 380] is the correct one. We too believe that Article 16(1) does permit reasonable classification for ensuring attainment of the equality of opportunity assured by it. For assuring equality of opportunity, it may well be necessary in certain situations to treat unequally situated persons unequally. Not doing so, would perpetuate and accentuate inequality. Article 16(4) is an instance of such classification, put in to place the matter beyond controversy. The “backward class of citizens” are classified as a separate category deserving a special treatment in the nature of reservation of 139 appointments/posts in the services of the State.

The Supreme Court has further made distinction by pointing out that “the 50 percent ceiling as put by this Court in St. Stephen’s College case was struck off by T.M.A. Pai Foundation case to give effect to content and meaning of Article 30.

The order further points out that setting aside of 50% ceiling by eleven Judge Bench in T.M.A. Pai Foundation case as was laid down by St. Stephen’s case i.e. 50% ceiling in admission in aided Minority Instructions has no bearing on the principle of 50% ceiling laid down by Indra Sawhney with respect to reservation.

The judgment of T.M.A. Pai was in reference to rights of minority under Article 30 and is not relevant for Reservation under Articles 16(4) and 15(4) of the Constitution. The Constitution (Eighty-first Amendment) Act, 2000 by which sub-clause (4B) was inserted in Article 16 makes it clear that ceiling of 50% “has now received constitutional recognition”.

It is important to note that the Constitution Bench of the Supreme Court in M. Nagaraj case has reiterated that ceiling limit on reservation fixed at 50 percent is to preserve equality. In paragraphs 111 and 114, following was laid down: “111. The petitioners submitted that equality has been recognized to be a basic feature of our Constitution. To preserve equality, a balance was struck in Indra Sawhney so as to ensure that the basic structure of Articles 14, 15 and 16 remains intact and at the same time social upliftment, as envisaged by the Constitution, stood achieved. In order to balance and structure the equality, a ceiling limit on reservation was fixed at 50% of the cadre strength; reservation was confined to initial recruitment and was not extended to promotion… 114. In Indra Sawhney, the equality which was protected by the rule of 50%, was by balancing the rights of the general category vis-à-vis the rights of BCs en bloc consisting of OBCs, SCs and STs…”

Furthermore, it has been pointed out in the order that it is well settled that all legislative Act and executive acts of the Government have to comply with the Fundamental Rights. The State’s legislative or any executive action passed in violation of Fundamental Rights is ultra vires to the Constitution. The 50 percent ceiling limit for reservation laid down by Indra Sawhney case is on the basis of principle of equality as enshrined in Article 16 of the Constitution. In paragraph 808, Indra Sawhney laid down: “808. that 14 and the 16 It needs no emphasis to say principle aim of Article is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision – though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14.

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