What happened in the Supreme Court on 19th November ?

After its filing the case in the form of Special Leave Petititons [SLPs] against the order of the High Court upholding the SEBC (Maratha) reservation Act, they were listed in August 2019. However the SC took up the Ram Janmabhoomi dispute on daily basis and could not hear the SLPs. The SC did hear and decide that case during the last few days of the then CJI. There was talk on various social media groups whether the Ram Janmabhoomi matter was more important than the SEBC (Maratha) reservation Act case. However that misses the point entirely. 

Had the SC taken up the Maratha reservation issue, and decided it either way as regarding stay, it would have caused trouble in the admission process. As it was, the PG admission rigmarole was enough trauma would have replayed itself with much trauma for UG students. It is painful to admit and state that the timing of the judgement of the Bombay HC was fatal. But things are so and wouldn’t be otherwise. The Maratha reservation issue is better dealt with finally and decisively. 2019 batch of student both PG and UG of medical and dental courses was sadly the casualty. Due to the efforts of SMSN and because of the anger shown in the street rallies, and other agitations by various groups, the GoM did try to compensate financial losses arising out of faulty implementation of Maratha Reservation.

For a version of this post in Marathi please click here in Marathi, please click here. 

Many topics were discussed in the meeting between SMSN delegation and the CM in July 2019. This was recorded in the minutes of the meeting issued by the CM’s office. That may have been small consolation for students affected by that botched implementation of both SEBC and EWS reservations for the year starting 2019. Fact of the matter is that in an unprecedented manner the MoM were issued. The concession made therein was clear admission by the GoM that there was some amends to be made.

Be that as it may, at the first hearing the SC refused stay to the implementation of the SEBC and EWS reservation. Earlier on the SC had ruled on implementation of EWS reservation policy by saying that it should not be applied unless the additional seats as contemplated in the EWS policy were created. Some additional seats were created.

The MoM took into account the fact that 12% quota for Marathas and 10% quota for EWS making a total of 22 % of the available seats were affected. On the eve of the Model Code of Conduct coming in to force in Maharashtra, reimbursement of the deficit in private and government medical colleges for these 22% students was announced. Again this will be of help to a small proportion of actual sufferers of the reservation policy, but as the saying goes, you don’t look a gift horse in its mouth.

On to the happenings in the SC on 19.11.2019. It is necessary to understand that parties before court have to follow certain procedure. Evidently, this procedure was not followed by some overenthusiastic parties who wanted to file SLPs just for the sake of filing them. “We too are agitated”, these people wanted to say, “and will do so”, even though that would be detrimental to the interests of the students at large. Absence of overenthusiastic litigants is the least thing the Courts deserve when hearing a matter of such great import. Yet, many groups of petitioners have filed SLPs against the Mumbai High Court order.

These misguided attempts of a few to be in the thick of things have caused multiple issues. The first one is that not all parties were served with notices as per the prescribed procedure. Further, the defects pointed out by the registry of the SC were not corrected in time. Thirdly, with so many caveators appearing before the Court, it is a difficult, time consuming and costly affair to file a matter before the SC. Particularly so when you are being funded by the public. Common sense says that where one suffices, two is more than enough. Evidently, and sadly so, the voice of reason was absent when it was decided by some people that multiple SLPs need to be filed. It was amateurism at play. On a very vital and emotive issue. Sometimes, fans can ruin the game of a champion. The hearing on 19.11.2019 was botched because of lack of understanding that court proceedings are solemn and sincere. You cannot, should not participate in litigation unless you are well informed of the issue at hand.

Being informed on the issue of reservation is a Herculean task. Not many have it in them to understand the issue.   And that is fine. Not many people understand cricket either. For a certainty this much: cricket fans watch matches on TV or live in the stadium.  They don’t, can’t hanker for a seat in the bunker. Their place is on the sidelines. Because they joined the game much later, they are kept on the sidelines. To applaud, cheer the actual players. To provide moral support to the home team as and when required. There are a few volunteers in the crowd around a cricket ground, big or small. Some people are cricket enthusiasts, some are there to keep scores and some are there just for the fun of it. Their worth should be judged according to their level of interest and their understanding of the game.

A game of cricket is pointless if there is nobody to watch. Not all can be players. Why is this simple thing not understood by overenthusiastic people? Too many cooks spoil the broth, they say. Too many advocates agitating the same grounds would be as burden on the judges.

The legality and constitutionality of the SEBC Act is under challenge. Petitions have been filed before the SC. Some have objections pending to be removed. GoM is yet to file its say/affidavit in reply to the application for stay to the effect and implementation of the Maratha reservation. The SC has directed that all defects should be removed and other compliances made. On 29^th November, the date is fixed for other formalities to be completed before the Registrar. The next date of hearing is in January 2020.

Tailpiece: It is more than likely that the SLPs of people other than the original petitioners were the cause of the application for stay not being heard on 19.11.2019. The State did not file its say, secure in the belief that it will escape blame because the hearing would not happen unless the defects were removed. To relieve their anxiety, latecomers to the reservation circus have become the cause for delay – and further anxiety for the genuinely concerned petitioners and their sympathizers.     

                                                                                                            © Adv. Shrirang Choudhary

The Supreme Court and Maratha Reservation

           

The King and Queen of Hearts were seated on their throne when they arrived, with a great crowd assembled about them—all sorts of little birds and beasts, as well as the whole pack of cards: . . . In the very middle of the court was a table, with a large dish of tarts upon it: they looked so good, that it made Alice quite hungry to look at them—'I wish they'd get the trial done,' she thought, 'and hand round the refreshments!' 

Alice's Adventures in Wonderland

 

In 2018, the Government of Maharashtra [GoM] enacted 16% reservation for Maratha community in education and employment. It was challenged by three parties. Sanjeet Shukla and the Constitutionalist Society of India were also petitioners in the earlier reservation matter in which Maratha reservation was stayed by the Bombay High Court. Dr. Dhople was the third petitioner. There were many interventions for and against the reservation. 

After hearing parties at length, the Bombay High Court reserved the matter for orders. The common Judgment was pronounced on 27^th June 2019, more than three months after the concluding arguments were heard. The High Court held that the State had the power to grant reservation. For reasons stated in the order, the reservation was pared to 12% in education and 13% in employment.

 

After the term of the BJP-Shivsena Alliance government led by Devendra Fadnavis, fresh assembly elections were held on 21^st October 2019. Results were announced on 24^th October. Bitterness about the reservation issue boiled over, particularly in the last days leading to the polling. Propaganda of NOTA as a punishment for sins of the BJP was touted by a few vociferous fear-mongers. They insisted that the government would increase the reservation to 100%. Reason was abandoned in favour of fantasies; in general of BJP losing majority, and in particular of Devendra Fadnavis losing his seat from his own constituency.   

More than five years before all of these developments, the GoM had provided 16% reservation for Maratha community by an Ordinance. On being challenged by Sanjeet Shukla and others, it was stayed by the Bombay High Court.  

The main difference in the instruments providing the two reservations is that the earlier was based on report of the Rane Committee. That Committee did not have Constitutional status. The current SEBC Act is based on the recommendations of the Maharashtra State Backward Class Commission, a Constitutional body led by Justice Gaikwad.  

It becomes necessary in this backdrop to examine whether the SEBC Act will 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.

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

In 1993, the Supreme Court, while deciding Indra Sawhney, decided that reservation beyond 50% is unconstitutional. It was held that 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. The legality of such enactment granting reservation in excess of 50% would be open to scrutiny by Court, as per the said Judgment.    

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 status because of its occupation and customs. There has been no caste wise census since 1921. Hence there is no proof of the Maratha community being 32% of the total population of Maharashtra. Even otherwise, the very claim that they should get 16% reservation because of the alleged 32% is absurd. The main motive behind reservation was adequate, not proportionate reservation. 

 

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

The Gaikwad Commission report does not show the exceptional circumstances as to why the benefits of reservation should be given to Maratha community. In its conception and preparation, there was an element of inevitability in the report. It seemed as if it was made to order. Exceptional circumstances can only be invoked when a particular community was not able to achieve social and educational progress because of social oppression or social deprivation or being alienated from the mainstream. The report in question does not provide any evidence of this happening to the Maratha community.

Though the backward community in India may be more in number than the advanced sections of the society, it has been treated as a minority for the sake of reservation. Hence cap of reservation at 50% has been the law of the land. In Maharashtra, the law has been followed in its breach by extending reservation to a category called the Special Backward Classes.

However, reservation based on recommendations of Gaikwad Commission is illegal.  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. Reservation of seats in private and unaided colleges is violation of their Constitutional rights to free trade. Hence the reservation cannot be made applicable to private and unaided colleges.

Present situation

If the considerations as above are understood in today’s context, it can be seen that Maratha reservation will not scrutiny of law. The report of the Gaikwad Commission was the basis of the SEBC reservation. But the report was not tabled in the Assembly. The Action Taken Report was 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 had cut off 12% of the total seats in education. 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? Why was it that except the misguided and disoriented community of doctors and aspiring doctors, none else was talking about the so called excessive reservation? 

In the last throes of the election campaigning, Raj Thakre, the leader of Maharashtra Navnirman Sena talked about the plight of the open category students. The tragedy is that the four major parties in the fray had nothing to offer regarding reservation. There was no condemnation of the reservation policy by any political party. In fact, after it was announced, all parties showed that all of them were for Maratha reservation. Yet, the issue remains.

Students study hard to score enough in National Eligibility cum Entrance [NEET] tests. After all, their career and future life depend on their score in this exam. The implementation of the Maratha reservation has made a mockery of this. It has ruined the lives of many medical aspirants. Some may have been poor, some rich. Some may have been from rural background, others thorough urban kids. Some may have been scions of illustrious doctors, others first generation literates. All of them have one thing in common. They had passed the NEET with flying colours.    

Is it not unjust and unfair that all other categories get a cumulative 52% while the Maratha community, a single caste group, gets 12%? What happens to the Kunbis who had enjoyed reservation in OBC category till now?

 २०१४ मध्ये लागू केलेला मराठा आरक्षणाचा अध्यादेश मुंबई उच्च न्यायालयाने का स्थगित केला?

Most importantly, why are leaders of the Maratha community still 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?

Now, after affirmation of the reservation by the Bombay High Court, the matter is in the Supreme Court. The main grounds to oppose the reservation, succinctly put, are as below.

That it breaches the 50% cap as laid down in Indra Sawhney.

That reservation was an exception to the first principle of Constitution i.e. Equality and the exception has now become the norm by crossing 50%.

The Maratha community can not in any manner be described as Socially or Educationally Backward. The data about the so-called backwardness of the community is perverse use of statistics to prove an untenable point. Gaikwad Commission Report was acted upon without due deliberation in the assembly.  

The power to declare a community or class as backward is now vested in the President and it is not for the States to declare a class as Socially and Educationally Backward. The 102^nd Amendment to the Constitution inserts the following provisions regarding Socially and Educationally Backward Classes.  

342A. (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.".

366.  (26 C) "socially and educationally backward classes" means such backward classes as are so deemed under article 342A for the purposes of this Constitution;’.

To put simply, the Socially and Educationally Backward Classes shall only be which are so deemed under Article 342 A for purposes of the Constitution. No such thing happened with the Marathas before they were declared SEBC by the GoM. As such, the entire edifice of the SEBC Act is built on shaky ground. Sharad Pawar, the experienced and well versed leader mentioned this lacuna, but the expediency of moment made the GoM push forth nonetheless.

सर्वोच्च न्यायालयात मराठा आरक्षणाचे काय होईल?

In the Supreme Court, all of the above points will weigh in, as will other factors like the actual loss of seats of open category due to wrong implementation of SEBC reservation during academic year 2019-20, the tragedy of no open postgraduate seats in many post graduate medical courses.

The war is long, the battle will be tough. At stake are 12% seats in education and 13% reservation in employment. This judgment will be a guideline for future disputes regarding reservation. Yet, from the tenor of the previous rulings, the Bombay High Court judgment upholding reservation in favour of Marathas is likely to be set aside. The SEBC Act granting reservation deserves to be struck down.

Tailpiece: The reason for BJP not getting to form the government after the Assembly Elections in Maharashtra in 2019 may vary from person to person, depending upon one's political bent. But history has repeated the precedent that the party extending benefits of reservation to a new class has been thrown out of power.

© Adv. Shrirang Choudhary

Note: The tailpiece has been amended.