Joy, Ecstasy and Ordinance; The Tragic Tale of Maratha Reservation Applied in 2019-20

On 30^th November 2018 the Act providing reservation for the Marathas, known as SEBC Act came into force. Without any deliberation in the Legislature, the recommendations in the report of the Maharashtra Backward Classes Commission headed by Justice Gaikwad were accepted by the then GoM. Almost as a chore, the bill introducing 16% reservation for Marathas in education and employment was passed unanimously in both houses of the legislature. Just as mechanically, it was signed into law by the Governor.

Stockholm syndrome: Condition where hostages develop psychological alliance with their captors as a survival strategy during captivity. These feelings are considered irrational in light of the danger or risk endured by the victims. https://t.co/tDdtwviUGP pic.twitter.com/8ybEa0QnLT

— scaranga (@scaranga1) May 19, 2019

The law was promptly challenged in the High Court of Bombay only to be upheld by a division bench, which pared down the reservation to 12% for education and 13% for employment. Now, the validity and constitutionality of the SEBC Act is in challenge Before the Supreme Court. As lawyers say, the matter is sub judice. 

Supreme Court and Maratha Reservation 

This is not the story of the SEBC Act. This is about how the Act was applied to the academic year 2019-20, surely the annus horribilis for education purposes in living memory. This story is about the botched policy of handing out doles maliciously only for appeasement, in spite of reportedly sound advice of bureaucrats. This is also the story about how a powerful government enjoying absolute majority could be made to surrender to brute show of force by a community fuelled by political ambitions of parties out of power. For that, good riddance, Devendra Fadnavis, and the Empowered Group of Ministers for Maratha Reservation led by the cocksure but clueless Chandrakant Patil. But we digress. We jump the gun. We go too far ahead. So, to get the story straight.  

 The drafting of the law, “a guerrilla tactic” according to Chandrakant Patil was dramatically, almost breathlessly covered by the over eager media, bending over backwards to tell the sordid saga. The eminent lawyer Harish Salve, [by then of the Harshvardhan Jadhav case fame] was said to have applied the finishing touches to the legislation which was “the most important event in Maharashtra in the last 70 years" [again Chandrakant Patil]. 

Be that as it may, the enactment contained all good components of a well drafted piece of legislation. It also contained a savings clause, in S 16. More of that later.

After the publication of the SEBC Act in the Gazette, the GoM put out a notification on 8th March 2019. It contained directions to all educational institutions to provide reservation of 16% for the Maratha community and 10% separate reservation for the Economically Weaker Sections [EWS] as announced by the Central Government. In Febraury, the Parliament had amended the Constitution to allow for this reservation to people who were not in any class covered by the existing reservation. Addition of this set of reservations took the total reservation in Maharashtra to 78%. After the Notification, the seat matrix was changed to include SEBC reservation.

Promptly, some students of postgraduate medical courses approached the Nagpur Bench of the Bombay High Court. Their contention was that according to the provisions in S 16 (2) of the SEBC Act, Maratha reservation was not to apply to courses for which the admission process had already begun. Admittedly, the admission process for the postgraduate medical and dental courses had already begun much before the SEBC Act came onto force. The notifications for National Eligibility cum Entrance Test [NEET] for both postgraduate and undergraduate medical and dental courses were issued before 30^th November 2018. Thus the Maratha reservation was not to apply to postgraduate medical and dental courses, was the plea of the students who approached the Nagpur Bench.

On 4^th May 2019, the   Nagpur Bench cancelled the admissions of students of PG medical courses who had availed of Maratha reservation and directed that the admission process be carried out afresh as if the reservation for Maratha students did not apply. Immediately, the omnipresent Chandrakant Patil proclaimed that the GoM would appeal to the Supreme Court. The Supreme Court declined to entertain the Special Leave Petition {SLP], but did take into account the plea for extension of time so as to comply with order of the Nagpur Bench. But the expression of willingness to comply with the order [and its own law] bought with it a renewed militancy in the Maratha agitators. They banded with the students and voiced their demand for the same seat in the same course in the same college. Providing them with a seat in private college and reimbursing the difference was not good enough for the students whose admissions were to be cancelled. They started protesting against implementation of  the order.  

When it became clear that the botched policy of applying reservation had failed, and that the students already admitted wouldn't budge, the GoM, again through Chandrakant Patil voiced its intention to bring in an Ordinance, in effect to regularise the admissions cancelled by the Nagpur Bench. People who had fought against the reservation and were hoping for a positive ruling in the main matter sub judice before the High Court petitioned the Chief Minister and the Governor. 

UG2PG MUMBAI GROUP MEETING DEVENDRA FADNAVIS

The Chief Minister is said to have made his position clear, he would stick to the policy adopted. The Governor has little say in the matter as it is the prerogative of the government to make laws. Ordinance is just a species of law. And an ordinance is as good or bad a law as Courts determine. The tragedy in this case was that the law contained a safeguard against hasty implementation of the reservation. 

It would have been in the interest of everybody concerned that the law be examined for its constitutional and legal validity by the Bombay High Court. The High Court had expressly referred to the unseemly haste with regard to the Megabharati or the mass recruitment. The GoM had undertaken not to appoint anybody on the reserved seats till the matter was finally heard and decided. The same policy should have been adopted for admissions to educational courses.

Even otherwise, the Nagpur Bench had made it clear that the express provision in S 16 was there for the purpose of removing ambiguities.

" . . . the Legislature had a foreboding about cropping of some ambiguity regarding applicability of this Act to various admission processes and with a view to remove all such doubts and ambiguities that the Legislature has inserted the explanation to each of the subsections of Section 16." 

After discussion about arguments on both sides, the Nagpur Bench held in its operative order

" . . . the revised provisional seat matrix published on 27.3.2019, insofar as it makes a provision for the category of SEBC candidates, being illegal, shall not be given effect to for the limited purpose of SEBC reservation in current admission process. The respondents, however, would conduct the admission process and complete it in accordance with applicable law, rules and orders before commencement of the SEBC Act, 2018."

In the event, the GoM by promulgating Ordinance took unforeseen steps to undo the effect of declaration of law by the High Court. Having participated in the hearing, and further having sought time before the Supreme Court to implement the order of the Nagpur Bench, it should not have taken steps to reverse the decision of the Court. The interpretation of law by a Court of Record, the High Court in this case, confirmed by the Supreme Court should have been implemented. Instead, the GoM disturbed the scheme of things by the Ordinance.

The Ordinance was bad in law and in circumstances of the matter. There was a recent precedent regarding an Ordinance about medical admissions being quashed. There were striking similarities between facts of the matter and in the case decided by the Supreme Court, Medical Council of India v. State of Kerala. In Janapada  Sabha  Chhindwara  vs. The   Central   Provinces Syndicate Ltd. and anr. 1970 (1) SCC 509, the Supreme Court had opined,

“. . . 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.”

So, the Ordinance should not have survived scrutiny of law. But for that to happen, effective challenge should have been mounted. It was not so done. The story gets murky from here. Against express advice to the contrary, some people approached the Supreme Court to seek relief against the Ordinance. The Supreme Court directed that the matter be agitated before the High Court. After much dillydallying on both sides, when the matter was finally to be heard, some luminary thought it fit to seek a clarification from the Supreme Court about maintainability of the challenge before the High Court. In stern words, the Supreme Court refused to issue any clarification. Of course, the idea was laughable, were it not tragic to note that it was only a ruse to somehow defer the hearing about validity of the Ordinance. 

After this, the High Court interpreted the order of the Supreme Court as the interested parties would have liked, and the writ petition challenging the Ordinance was dismissed. Then the matter reached the Supreme Court. Ultimately, it got listed for hearing at a stage when the petitions challenging the SEBC Act were to be finally decided by the Bombay High Court. The Supreme Court also did not hear the challenge to the Ordinance on merits. 

Unfortunately, against all expectations to the contrary, the validity of the SEBC Act was upheld by the Bombay High Court. The groundswell of anger and resentment was rising, particularly amongst the medical fraternity. Imperceptibly, a movement arose in Vidarbha. Massive rallies, various sorts of agitations, protest marches, representations to elected representatives were undertaken by a group of people. The movement, known as Save merit Save Nation [SMSN] captured the imagination of the middle class and the professional class alike. Elected representatives visiting their constituencies, political leaders touring the state, MLAs, MPs were met with flags of protest against the "excessive reservation" beyond 50% in the state of Maharashtra. Many demands were raised, many people joined the movement, many towns and cities saw huge crowds gather. 

The GoM ultimately saw enough to meet a delegation of SMSN. In a meeting held in presence of various Secretaries, the Chief Minister Devendra Fadnavis agreed to many of the demands in principle. Most importantly, the GoM accepted that it had erred in applying the reservation for 2019-20, and agreed to reimburse the difference in fees between private and government colleges for the students who were directly affected by the SEBC reservation being applied. Ultimately, a package amounting to hundreds of crores was approved by the Cabinet.  

By then, various people had moved the Supreme Court against the Bombay High Court judgment validating Maratha reservation. Of these, the most important challenges are the ones raised by the original petitioners Jaishri Patil, Dr. Uday Dhople and Sanjeet Shukla. The hearing on the matters, scheduled for August had to be postponed because the Supreme Court was hearing the Ayodhya matters on a daily basis.  

In September, bugles were sounded for elections to the Maharashtra assembly. Almost immediately, cries for None of the Above [NOTA] went out on social media platforms. Disgruntled voices cried themselves hoarse about the efficiency of NOTA as a weapon to punish the transgresses of the GoM led by Fadnavis. Wise people threw caution to the wind proclaiming their lifelong support for Jan Sangh ideology, but inclination to vote NOTA this time around. Social media was abuzz with the virtues of NOTA. None of that seemed to have mattered for the BJP when the results were declared. BJP had won enough seats along with Shiv Sena to form government. 

However, history is anything but kind. And it repeats itself. The unimaginable happened after suspense of about a month or so after the elections. The BJP, having made Devendra Fadnavis Chief Minister again, was thrown out of power by the coalition of the unlikely political combination of Shivsena, NCP and Congress. Sweet revenge for the people affected by the SEBC reservation. 

The tragedy is that the story of  students affected by the introduction and implementation of SEBC reservation in 2019-20 may never be told. 

Tailpiece:  Political parties extending reservation benefits to new classes have lost power. Eg. V. P. Singh after Mandal recommended OBC reservation. Prithviraj Chanvan led Congress-NCP after ESBC reservation for Marathas by Ordinance in 2014. Now despite a clear mandate for governance with its allies, the BJP finds itself in opposition.

Adv. Shrirang Choudhary