Maratha reservation was struck down in 2014 on these points

Salient points in the case of Sanjeetkumar vs. State of Maharashtra 

According to the Supreme Court’s decision in Indra Sawhney, reservation exceeding 50% is against constitutional principles. However, in exceptional circumstances if the backwardness of a community and inadequacy of representation can be proved by quantifiable data this limit can be exceeded. The validity of such reservation exceeding 50% can be examined by Courts. 
For a version of this article in Marathi click here.

Dr. Ambedkar, in his speech in the Constituent Assembly had opined that if the reservation is to be consistent with the principle of equality of opportunity enshrined in the Constitution, it must be confined to a minority of seats. If reservation for a collection of communities comes to 70%, thereby limiting the unreserved to 30%, it will not be giving effect to the first principle i.e. equality of opportunity.

Mandal Commission had included the Marathas in ‘Forward Hindu Castes and Communities’.

Mandal Commission in 1990, National Backward Classes Commission in 2000 and the State Backward Classes Commission in 2008 and 2013 have rejected representations of the Maratha community to be considered as socially and educationally backward class.

Marathas were essentially kunbis, however from the 14^th century onwards, they advanced themselves socially, educationally and politically because of their customs and occupation.

There has been no caste wise census since 1921. The State Government’s assumption that Maratha community is 32% of the population cannot be accepted to justify the reservation of 16%

The documents on record do not prove that there are exceptional circumstances to extend benefit of reservation to Maratha community.

Extension of benefit of reservation to a particular community due to exceptional circumstances can only be considered when the said class could not make social and economic progress because of social oppression or deprivation or social discrimination against or social segregation of the community in whose favour reservation is to be extended.

In Indra Sawhney case, having noted that backward classes in India constitute majority of the population, Justice Reddy still held that ceiling limit of 50 per cent on reservations is a binding rule and not a rule of prudence.

The Rane Committee Report suffers from several glaring flaws, which go to the root of the matter.

Imposing reservations on private unaided institutions constitutes an unreasonable restriction upon the fundamental right guaranteed by Article 19(1)(g) to establish and run educational institutions. Hence this reservation will not be applicable to such institutions.

In so far as reservation in public employment is concerned, applying the law laid down by the Constitution Benches of Supreme Court in the years 2006 in the case of M. Nagaraj and in July 2014 in the case of Rohtas Bhankhar, the percentage of reservations cannot be in excess of 50%.

© Shrirang Choudhary

Ordinance validating admissions of Maratha students under SEBC reservations is legally flawed

The SEBC Ordinance validating reservation given to Maratha candidates in postgraduate medical courses is legally and constitutionally flawed

In March 2019, the Government of Maharashtra [GoM] brought out a notification to the effect that the SEBC reservation given to the Marathas will be applicable to for admission to postgraduate medical courses starting in 2019. A clutch of writ petitions challenging the notification were filed. It was contended that the reservation should not have been applied by virtue of S. 16 (2) of the SEBC Act.  It provides that the reservations will not be applicable to courses where admission process had started before the SEBC Act coming into effect. The admission process had already begun on 02.11.2018, much before the Act came into effect on 30.11.2018.  

For a version of this article in Marathi click here.

After hearing parties at length, the High Court of Bombay bench at Nagpur directed that the admission process should be carried out as per the rules prevalent prior to the coming into effect of SEBC Act.  

This decision was upheld by the Supreme Court. The attempt of the GoM to justify its policy was nullified by Courts which directed admissions to be done without the SEBC reservation being applied. The GoM did not comply with the directions of the Courts.

In an attempt to quell the agitation of Maratha supporters, GoM offered to pay the fees for the education of students of SEBC category affected by the order inprivate colleges. But the Maratha students and reservation agitators stuck to their demand of same seat, same branch and same college to which they had been admitted because of GoM policy.

 After long dithering and taking further steps tantamount to contempt of Court, GoM moved Election Commission of India to seek relaxation of Code of Conduct. It also sought further time from the Supreme Court on spurious reasons.

On 20.05.2019, as Ordinance was promulgated validating the admissions of the candidates under reservation quota and retrospectively amending S. 16 (2) of the SEBC Act. This is in continuation of its flawed policy of hasty implementation of the SEBC Act which itself is under challenge. It is likely that the SEBC Act will be declared bad in law.

The Ordinance has been challenged before the Nagpur Bench.

There are three main grounds on which the Ordinance is bad in law.

i) It intends directly to circumvent the final judgment of a Court.

ii) It retrospectively amends a law thereby frustrating legitimate expectations of open category students who had lesser seats because of illegal implementation of reservation when clearly S 16 (2) of the SEBC Act intended otherwise.

iii) It is in conflict with the ratio led down in Medical Council of India vs. State of Kerala wherein the Supreme Court ruled that

“The impugned Ordinance is declared to be ultra vires and entrenching upon the field earmarked for the judiciary as it sought to nullify the judgment and order passed by the High Court and this Court.”       

It is also useful to read from a judgment of the Constitution Bench in Janapada  Sabha  Chhindwara  vs. The   Central   Provinces Syndicate Ltd. and anr. 1970 (1) SCC 509

 “On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court. That, in our judgment, is not open to the Legislature to do under our Constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.”

The Ordinance is bad in law and in view of clear precedent, likely to be  declared ultra vires by Courts. 

Adv. Shrirang Choudhary

Going by Judicial Precedent, Maratha reservation will not survive judicial scrutiny

 GOING BY JUDICIAL PRECEDENT, MARATHA RESERVATION WILL NOT SURVIVE  JUDICIAL SCRUTINY

On the eve of the last Assembly Elections in 2014, the then Government of Maharashtra [GoM] promulgated an Ordinance. This was after the NDA government led by Narendra Modi swept the UPA, led by Congress’ Manmohan Singh led government out of power. The Ordinance provided 16% reservation to the Maratha community. It was challenged promptly. In due course, after hearing parties at length, the High Court of Bombay stayed the Ordinance and the reservation. 

The Supreme Court refused to intervene in this matter. 

Why did the attempt to impose Maratha reservation fail in 2014?

 
After the formation of the BJP-Shivsena Alliance Govt led by Devendra Fadnavis, a law was enacted to provide reservation for Marathas, but that was also stayed by the High Court of Bombay. 

For a version of this article in Marathi, click here.

About four years after this, the GoM provided reservation for Maratha community by enacting a law known as the SEBC Act. The main difference in both laws is that the earlier was based on report of the Rane Committee which did not have Constitutional status, whereas the current SEBC Act is based on the recommendations of the Maharashtra State Backward Class Commission, a Constitutional body led by Justice Gaikwad.  

The GoM was emphatic in saying that the reservation will stand judicial scrutiny. Some ministers including Sadabhau Khot spoke about it. But Chandrakant Patil, the Chairman of the Sub Committee for Maratha reservation prays at Pandharpur expressly seeking that the reservation should withstand judicial scrutiny. Many in the GoM say that they will deploy an army of lawyers to defend it in Courts of law. Vinod Tawade, the Education Minister says that the demand for the report of the Maharashtra State Backward Class Commission to be tabled on the floor of the house is impractical. His explanation? If opponents read it, they will challenge the law in Courts!

It becomes necessary in this backdrop to examine whether the law will really stand judicial scrutiny. To analyze the issue, it is necessary to understand the grounds on which earlier reservation was struck down by Courts in the matter known as Sanjeet Shukla vs. Union of India.

In 1993, the Supreme Court, while deciding Indra Sawhney, decided that reservation beyond 50% is unconstitutional. However, in exceptional circumstances, if a community can be classified as backward, this limit can be breached. However, this increase should on the basis of quantifiable data. However, the legality of such enactment granting reservation in excess of 50% would be open to scrutiny by Court.   

In the Constituent Assembly debates, Dr. Ambedkar had opined, “if the open seats are reduced to 30% due to reservation given to a particular community, then that reservation would not be just.” Thus, the makers of the Constitution did not agree with reserved seats being more in number than open seats.  

In its report, the Mandal Commission had included Maratha caste in ‘Forward Hindu Castes and Communities.’ The National Backward Class Commission had in its report in the year 2000 said that Maratha caste is a socially advanced class. Maharashtra State Backward Class Commission had refused to classify the Marathas in the Other Backward Class category, in 2008. This demand was again refused in 2013.

Maratha community was counted amongst the Kunbis, but from the 14^th century onwards, Maratha community attained higher social, educational and political class status because of its occupation and customs. There has no caste wise census since 1921. Hence there is no proof of the Maratha community being 32% of the total population of Maharashtra.  

For decades, the Marathas are demanding that they should be included in the OBC. But three reports of Constitutional committees have rejected that demand.    

The papers provided by the GoM do not show the exceptional circumstances as to why the benefits of reservation should be given to Maratha community. A community can be said to be in exceptional circumstances only when it was not able to achieve social and educational progress because of social oppression or social deprivation or being alienated from the mainstream. Hence even though the backward community in India may be more in number than the advanced sections of the society, cap of reservation at 50% is the law. The reservation based on recommendations of Rane Committee is illegal.

Reservation of seats in private and unaided colleges is violation of their Constitutional rights to free trade. Hence the reservation can not be made applicable to private and unaided colleges.

According to the decision of the Supreme Court of India in Rohtas Bhankhar vs. Union of India, reservation in employment cannot exceed 50%. The reservation law enacted in 2001 in the State of Maharashtra provides for reservation of 52%. Hence no reservation can be provided in excess of the existing reservation for employment.

Present situation

If the considerations as above are understood in today’s context, it can be seen that things have not changed much. Only difference in this and that case is the report of the Gaikwad Commission. But why was the report not tabled in the Assembly? Why was the Action Taken Report not made public? It was also reported in the press that three out of the eight members of the Commission had expressed views opposing the report. What were those views? What was the opinion of the Commission? Why should not the so called revolutionary report of 20000 pages be made public?

This reservation has cut off 16% of the total seats. Why is there no popular opposition to the reservation? How can the opposition parties proclaim loudly that all communities wanted the Maratha community to be given reservation? Is it not unjust and unfair that all other categories get a cumulative 52% while the Maratha community, a single caste group, gets 16%? What happens to the Kunbis who had enjoyed reservation in OBC category till now?

Most importantly, why are leaders of the Maratha community demanding reservation from OBC category? And now if reservation is sought from OBC category, why was so long the rider “without disturbing existing reservations” being bombarded at every opportunity?

The Chief Minister had professed his bounden duty to ensure Maratha reservation from day One. Matter was pending for hearing before the High Court. Literally nobody had expressed opposition to the reservation. On whose orders then were provocative slogans being raised? Who was responsible for the headlines causing terrifying unrest and instability in the society?

Now, after declaration of the reservation, there is a public outcry, “The fight is not over. All is well only after Courts clear the reservation.” Leaders are supposed to provide this wisdom, this patience to their followers. Now the test is not of the reservation itself but of the so called leadership of the agitation.  The coming days will decide how mature the society in Maharashtra is.

                             ©Adv. Shrirang Choudhary

• For a Marathi version of this article, click here.