Will the Supreme Court stay the implementation of Maratha reservation ?

The Supreme Court will hear the SLPs filed by Dr. Uday Dhople, Sanjeet Shukla of Youth For India (YFE), Rajshri Patil and others on 5th February on the point of stay. Despite availing ample time to file their Counter-affidavit, the Government of Maharashtra filed an application seeking adjournment of the hearing scheduled on 4th February. Admission to postgraduate medical courses is the most urgent issue for which stay is necessary. 

Faulty implementation of policy, despite there being a savings clause in the SEBC Act, by which the reservation should not have been extended to that batch resulted in the Nagpur Bench of Bombay High Court cancelling admissions of students on the basis of SEBC reservation for the 2019 batch. The Supreme Court affirmed this order. 

Most egregiously, the GoM promulgated the infamous Ordinance overriding the Nagpur Bench order confirmed by the Supreme Court. In the event, Postgraduate medical batch of 2019 suffered despite a Court order in their favour. Later on, the Maratha reservation was upheld by the Bombay High Court. It is against this order that the petitioners are in the Supreme Court. For better understanding of the issues at stake, it would be beneficial to understand why the Maratha reservation was stayed by the Bombay High Court in 2014.

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. 

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, 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%.
 
Points to be noted
 
The only difference between the Ordinance extending reservation to Marathas in 2014 and the SEBC Act 2018 is that the later is purported to be based on the recommendations of the report of the Maharashtra States Backward Classes Commission headed by Justice Gaikwad. better known as the Gaikwad Commission Report. Said report is not yet made public. it was not tabled in the Legislative Assembly nor was the Action taken Report issued before its recommendations were accepted and reservation was extended to the Maratha community.

Tailpiece:   The reason mentioned for seeking adjournment is that annexures to the report have not yet been translated and that the Counter affidavit is not ready. It would be interesting to see whether any action is taken against responsible officials for their negligence and lack of due care towards the petitioners and the Supreme Court.

© Adv. Shrirang Choudhary 

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

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