Updated: Nov 22, 2021
The Apex Court has unanimously ruled to struck down the Maratha quota because it exceeds 50% reservation ceiling limit that was imposed in Indra Sawhney case. However, the Court’s verdict split by 3:2 on the issue concerning state’s power to demarcate Socially and Educationally Backward Classes (SEBCs) as per 102nd Constitutional amendment act. Besides, being an informative account of several aspects related to the judgment in Jaishri Laxmanrao Patil which is the recent amendment in reservations, the article puts into spotlight the possible consequences inviting disgruntled litigants and other states’ grievances pertaining to issues handled in the case.
BACKGROUND OF THE CASE
The constitutional bench of Supreme Court held Maharashtra’s Socially and Educationally Backward Classes Act, 2018 unconstitutional in Jaishri Laxmanrao Patil & Others v. Chief Minister, Maharashtra & Anr. The background and facts of case are as following.
On 9 July 2014, State of Maharashtra promulgated an ordinance granting 16% reservation to the Maratha community in education and public employment. Bombay High court issued an interim order staying its implementation. Subsequently, the Supreme Court refused to set aside the interim order, on 18 December 2014. Nevertheless, Maharashtra government enacted the Socially and Educationally Backward Classes Act, 2014 which was again halted its implementation by Bombay High Court citing reason of its semblance to the ordinance, on 7 April 2016. Thereafter, state of Maharashtra established Maharashtra State Backward Class Commission, chaired by Justice M.G. Gaikwad which suggested 12% and 13% reservation in educational institutions and public employment, respectively for the Maratha community.
On the basis of Commission’s recommendations, state of Maharashtra passed SEBC Act, 2018 exceeding the recommending quota to 16%, thus, crossing the overall ceiling of 50% reservation imposed in Indra Sawhney. The constitutional validity of the act was challenged in Bombay HC which upheld the constitutionality but pointed to reduce reservation to 12% and 13%. Jaishree Laxmanrao Patil and Advocate Sanjeet Shukla, representative of “Youth for Equality” challenged Bombay HC’s decision of holding act constitutionally valid and breach of 50% ceiling on reservation, respectively in the Supreme Court which admitted the appeals on 12 July, 2019. The case was later referred to higher bench due to involvement of substantial questions relating to interpretation of Constitution. The bench stayed implementation of the act creating exception for post-graduate medical courses.
SUPREME COURT’S FINDINGS
Fallacies in Commission’s report
The bench unanimously held that the Maratha Community is a socially and politically dominant class. According to the report submitted by the Commission, Marathas have occupied 33%, 29.03%, 37.06% and 36.53% jobs in Grade A, B, C and D posts in State government services, respectively. Further, it found that the Commission has made blunders while calculating the percentage adding posts available for open category as well as of reserved categories and that’s why, the Commission found representation of services of Maratha community to be inadequate.
Another error committed by the Commission, was examination of representation under Article 16(4) through relying upon ‘proportionate representation’, the bench specified that the Constitution relies on the concept of ‘adequate representation’ and Maratha community possessing positions over 30% on average has adequate representation. The Commission failed miserably in interpreting the data and using it to conclude whether Maratha community constitutes backward class or not. Coupled with these fallacies, the Commission failed to comparatively analyze the factors responsible for metamorphosis of Maratha Community from forward to backward class.
Adequate posts of central services such as IPS, IAS and IFS along with professors, heads of departments, associate professors, assistant professors are occupied by Maratha Community which is a “substantial representation of Marathas in prestigious central services”, the court noted. The bench added that not occupying positions proportionate to population can’t be contended as a reason for citing any community as ‘Socially and Educationally Backward’.
50% ceiling breached
When the Maratha community doesn’t deserve reservations at all, the question pertaining to merit them reservation doesn’t exist anymore. But the bench went extra mile and denied reservations because of its non-compliance with “extraordinary circumstances” as established by Indra Sawhney ruling. The bench pontified the greatest common measure in six separate judgments in Indra Sawhney that under Article 16(4), reservation shall not exceed 50% except extraordinary circumstances, thus, found no ground to re-visit Indra Sawhney judgment or it to be considered by higher bench.
The 50% cap isn’t arbitrary and unreasonable but, it reasonably strikes to achieve the principle of equality and that’s why the judgment laid down in Indra Sawhney had been followed throughout decades without being questioned. Justice Bhushan propounded “to change the 50% limit is to have a society which isn’t founded on equality but based on caste rule”. Eventually, with the changing times, needs and dynamics of the society law must change as has been accurately described by the Supreme Court in its definition of law, “Greatest virtue of Law is its flexibility and adaptability” earlier, but the bench wasn’t persuaded with changing the ceiling limit of 50%.
The only method for betterment of any community can’t be only through providing reservations, the other means and methods should be forged by state, such as providing concessions, free education, skill development opportunities, etc. This is because in the contemporary contexts of Liberalization and Globalization of the economy, increasing population and limited resources, public employment isn’t sufficient to cater to needs of all, the bench suggested.
Articles 15 and 16 doesn’t mention that certain posts can’t be reserved thus making no exclusion, the respondents contended. Paragraph 838 of Indra Sawhney specifies that posts not conducive to public and national interest can’t be reserved, the bench replied. Senior counsel, Mukul Rohatgi while referring to paragraph 810 of Indra Sawhney alleged that the criteria of “extraordinary circumstances” is more of a geographical test, which may not apply to every state. The bench propounded that, the extraordinary situations in aforesaid paragraph are illustrative and not exhaustive, thus, disagreeing from it being merely a geographical test. For instance, the Constitutional bench besides applying 50% ceiling while providing vertical reservations to SC/ST/OBC in local self-government, created an exception for STs of Scheduled Area to protect their interests.
102nd Constitutional Amendment
The amendment seeks to grant Constitutional status to National Commission for Backward Classes (NCBC). The body established under National Commission for Backward Classes Act, 1963 has the power to listen to the complaints regarding inclusion and exclusion of certain community, to list welfare measures for advancement of backward classes and plays decisive role in preparation of lists. According to Art. 342A, the President has obligation to specify Socially and Educationally Backward Classes (SEBCs) with consultation to Governor of concerned states. States can make suggestions for inclusion and exclusion; however, the final say remains in the hands of the President for applying the suggestion and of the Parliament to amend the list of SEBCs.
The majority justices, Rao J., Gupta J. and Bhat J. agreed that the amendment deprives state of the power to enact legislation on SEBCs and forging measures for their welfare. The respondents contended that, under Articles 15(4) and 16(4), Centre and States have equal power over advancing interests of SEBCs and thus, any act of Centre can’t encroach upon state’s power. On the other hand, the minority judges Bhushan J. and Nazeer J. held that if state of Maharashtra didn’t have the legislative competency to enact such legislation, the 102nd amendment act stands violative of federal structure and thus, unconstitutional. Thus, the verdict split in 3:2 on these issues.
Since the majority judges put their reliance on understanding and interpreting law literally, they were reluctant to consider respondents’ aid on Parliament’s debates, to prevent any uncertainty in interpretation of the amendment. Therefore, the amendment deprives State Legislature of power of identifying SEBCs or to enact legislation for any backward class, through literal understanding of amendment.
Justice Bhat held that 102nd amendment isn’t violative of Article 368(2) of Constitution which in case of amendment pertaining to states requires ratification of majority of states. This can have serious consequences as it’s likely to erode states’ powers and thus danger to the federal structure of nation. The majority judges’ stances must have been thunderbolt for states due to unclear articulation of views except this that literal interpretation of law is preferred over external aids. Moreover, the ceiling of 50% was also breached in 103rd constitutional amendment, in which a separate quota was provided for Economically Weaker Sections (EPW) whose constitutional validity is still ambiguous as guidelines laid down in M. Nagaraj weren’t considered. Over the years, state such as Tamil Nadu have crossed the rubicon and provided reservation shooting 60%. The Supreme Court didn’t put the record straight and has expanded the ambit by inviting disgruntled litigants and states’ grievances pertaining to the issues, thus, failed to utilize the opportunity.
 Indra Sawhney &Ors. v. Union of India & Ors., AIR 1993 SC 477.  Jaishri Laxmanrao Patil & Others v. Chief Minister, Maharashtra & Anr., 2020 SCC Online SC 727.  Maratha Reservation, Supreme Court Observer, https://www.scobserver.in/court-case/maratha-reservation.  V. Venkatesan, Maratha Reservations: Why SC’s verdict may still open door to further litigation, The WireIn, https://thewire.in/law/maratha-reservations-why-scs-verdict-may-still-open-the-door-to-further-litigation (May 7, 2021).  K. Krishna murthy and Others v. Union of India, W.P. (Civil) No. 356/ 1994.  The Constitution (One hundred and twenty third Amendment) Bill, 2017, PRS India, https://prsindia.org/billtrack/the-constitution-one-hundred-and-twenty-third-amendment-bill-2017.  V. Venkatesan, Maratha Reservations: Why SC’s verdict may still open door to further litigation, The WireIn, https://thewire.in/law/maratha-reservations-why-scs-verdict-may-still-open-the-door-to-further-litigation (May 7, 2021).  M Nagaraj and Ors. v. Union of India & Ors., AIR 2007 SC 71.