Since there was continuous demand for Maratha Reservation till 2018, it was however, deferred due to unwillingness of political parties. However, the act was introduced during BJP Government which granted 16% reservation for Maratha; however, the act had been challenged & the Hon’ble Bombay High Court upheld the reservation & allowed the reservation & reduced it to 12 per cent in education and 13 per cent in government jobs.
However, it has been again challenged before the Supreme Court ,as three-judge Bench of the Supreme Court on Wednesday referred a group of petitions challenging the Maratha reservation law to a Constitution Bench.
The Bench led by Justice L. Nageswara Rao found merit in the arguments made by senior lawyers that a larger Bench should examine the issue of reservation for the Maratha community. Chief Justice S.A. Bobde will constitute the Bench.
The court said the Maratha quota, meanwhile, will not apply for admissions and appointments made in the State for 2020- 21. However, the postgraduate admissions which have already been made will be left unaltered. In this back ground let’s see What is Maratha Reservation & why it has been challenged before Hon’ble Supreme Court.
THE MANDAL COMMISSION REPORT
The commission which listed 128 communities as backward, identified Marathas as ‘forward’. The Khatri Commission (1995) constituted by the Maharashtra government held by majority that Marathas may not be included as Kunbis in the list of OBCs, but recommended that people entered as Kunbi-Maratha or Maratha-Kunbi may be given the same benefits as the Kunbi caste. The request of treating Marathas at par with Kunbis was not accepted even in 2000 and Marathas were not included in the central Backward Classes list. In 2008, the Bapat Commission by a 4-2 majority recommended that it would not be proper to include Marathas among OBCs from the viewpoint of principles of social justice.
JUSTICE M.G. GAIKWAD COMMISSION: QUANTIFIABLE DATA
In 2017, the 11-member Maharashtra State Backward Class Commission (MSBCC) headed by retired Justice G M Gaikwad, a reference was made to the Maharashtra Backward Class Commission. When its chairman Justice S B Mhase passed away, he was replaced with Justice M G Gaikwad in November 2017. The Gaikwad Commission report submitted on November 15, 2018, found that Marathas are socially, educationally and economically backward and eligible to be included as a Backward Class.
The High Court expressed its satisfaction on the authenticity of the data in the report. The court also discussed at length through comparative tabular analysis why denial of Backward Class status to Marathas by earlier Commissions was wrong.
In social backwardness, the Gaikwad Commission found that 76.86% of Maratha families are engaged in agriculture and agricultural labour, around 70% live in kachcha dwellings, and only 35.39% have personal tap water connections. In educational backwardness, it found that 13.42% of Marathas are illiterate, 35.31% primary educated, 43.79% HSC and SSC, 6.71% undergraduates and just 0.77% postgraduates and professionally qualified. In economic backwardness, the Commission found that 93% Maratha families have an annual income of Rs 1 lakh; 37.38% families are Below Poverty Line against the state average of 24.2%, and 71% own less than 2.5 acres land.
MARATHA POPULATION IN MAHARASTRA
Based on its estimate of the Maratha population at 30% of Maharashtra’s total, the Commission had suggested for 12% and 13% reservation to Marathas but the state government of its own adopted 16% reservation. The Commission found that Marathas are about 30% of the state’s population. The court rejected the argument of the petitioners who had argued that 30% is not mathematically correct. If the population of SCs is 13%, that of STs is 11%, and that of OBCs as per Mandal Commission is 52% and if Maratha is added as 30%, it would take the total population over 100%, the petitioners had argued.
The Committee surveyed about 45, 000 families from two villages from each of 355 talukas with more than 50 per cent Maratha population. The report submitted on November 15, 2018, said that the Maratha community is socially, economically and educationally backward.
In social backwardness, the Commission found that around 76.86 % of Maratha families are engaged in agriculture and agricultural labour for their livelihood and nearly 70% reside in Kachha dwellings, and only 35- 39 % have personal tap water connections. Moreover, the report said that in 2013-2018, a total of 2,152 (23.56%) Maratha farmers died by suicide, against total 13, 368 farmer suicides.
The Commission also found that 88.81 % Maratha women are involved in physical labour for earning livelihood, besides physical domestic work they perform for the family.
In educational backwardness, it found that 13.42 % of Marathas are illiterate, 35.31 % primary educated, 43.79 % HSC and SSC, 6.71 % undergraduates and postgraduates and 0.77 % technically and professionally qualified. In economic backwardness, the Commission found that 93 % Maratha families have an annual income of Rs 1 lakh, which was below average income of middleclass families. Moreover, it found that 37. 38% families were Below Poverty line against the state average of 24% and 71% own less than 2.5 acres land, whereas only 2.7% big farmers own 10 acres of land.
THE BOMBAY HIGH COURT OBSERVATION ON MARATHA RESERVATION
The HC upheld & expressed satisfaction over the data and observed that the Commission had conclusively established the social, economic and educational backwardness of the Maratha community. It had also established inadequacy of representation of the Maratha community in public employment in the state.
On February 6 last year, a division bench of Justices Ranjit More and Bharati Dangre commenced hearing in petitions filed by advocate Rajashri Laxmanrao Patil and others. In April last year, the court closed the petitions for the verdict.
While ruling that the 16 per cent quota granted by the state was not ‘justifiable,’ the Bombay High Court on July 27 last year reduced it to 12 per cent in education and 13 per cent in government jobs, as recommended by the Maharashtra State Backward Class Commission.
The bench of Justice Ranjit More and Justice Bharati H Dangre observed that “We hold and declare that the limit of reservation should not exceed 50%. However, in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, inadequacy of representation and without affecting the efficiency in administration.”
The Court had said that while the backwardness of the community was not comparable with SCs and STs, it was comparable with several other backward classes, which find place in the list of Other Backward Classes pursuant to the Mandal Commission.
THE EXISTING TOTAL RESERVATION POSITION IN MAHARASHTRA AFTER HC VERDICT?
A nine-judge bench of the Supreme Court, in the 1993 Indra Sawhney case, which is known as Mandal Commission case, had ruled that total reservation for backward classes cannot go beyond the 50%-mark. Maharashtra is one of the few states that are an exception to this.
In the state, following the 2001 State Reservation Act, the total reservation was 52 per cent. This included quotas for Scheduled Caster (13%), Scheduled Tribes (7%), Other Backward Classes (19%), Special Backward Class (2%), Vimukti Jati (3%), Nomadic Tribe B (2.5%), Nomadic Tribe C-Dhangar (3.5%) and Nomadic Tribe D-Vanjari (2%). The quotas for Nomadic Tribes and Special Backward Classes have been carved out of the total OBC quota.
With the addition of 12-13 per cent Maratha quota, the total reservation in the state is 64-65 per cent.
The 10 % Economically Weaker Sections (EWS) quota announced by the Centre last year is also effective in the state.
What made Hon’ble Supreme Court to refer the matter to Constitutional Bench: –
The Maharastra Socially and Educationally Backward Classes (SEBC) Act, 2018, provides for 12% and 13% quota to the Maratha community in education and jobs respectively, violates the principles laid in the case of Indira Sawhney v. Union of India (1992) as per which the Apex Court capped the reservation limit at 50%. The Bombay High Court, while upholding the Maratha quota, held that 16% reservation is not justifiable and ruled that reservation should not exceed 12% in employment and 13% in education a s r e c o m m e n d e d b y Backward Commission. The above observations were made by the Apex Court bench while referring the cases to larger bench as the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is involved.
One more notable observation was made during the hearing that the Court said that the question relating to the extent of reservation has already been decided in Indra Sawhney case, it cannot be termed as a substantial question of law as to the interpretation of the Constitution.
WHETHER THE MAHARASHTRA STATE HAS FAILED TO TREAT IT AS SPECIAL CASE
While observing exceptional grounds Supreme Court observes that social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent.
The Court Referring to Indra Sawhney judgment observed thus:
People living in far flung and remote areas not being in the mainstream of national life should be treated in a different way. In view of the conditions peculiar to them they are entitled to be given relaxation. It was made clear that extreme caution has to be exercised and a special case made out for relaxation of the rule of 50 per cent.
We are of the prima facie opinion that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent. Maratha community which comprises of 30 per cent of the population in the State of Maharashtra cannot be compared to marginalized sections of the society living in far flung and remote areas. The State has failed to make out a special case for providing reservation in excess of 50 per cent. Neither has any caution been exercised by the State in doing so.
WHETHER FACTORS WERE EXTRAORDINARY, WARRANTED AND EXCEPTIONAL
The Court prima facie observed that the High Court committed an error in treating the circumstances cited by the state as extraordinary, warranting relaxation of the strict rule of 50 per cent. It said:
The factors termed as extraordinary and exceptional, justifying reservations in excess of 50 per cent are those required for the purpose of providing reservations. The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent.
WHY INTERIM WAS NOT GRANTED
It was contended before the bench that once the matter is referred to a larger Bench, no interim orders can be passed by the referring court and it should be left open to the larger Bench to consider any interim relief. The Court, disagreeing with the said argument, observed that there is no absolute rule to restrain interim orders being passed when an enactment is ex facie unconstitutional or contrary to the law laid down by the Supreme Court. The bench said:
If the Court is convinced that the statute is ex-facie unconstitutional and the factors like balance of convenience, irreparable injury and Public Interest are in favour of passing an interim order, the Court can grant interim relief. There is always a presumption in favour of the constitutional validity of a legislation.
Unless the provision is manifestly unjust or glaringly un-constitutional, the courts do show judicial restraint in staying the applicability of the same19. It is evident from a perusal of the above judgment that normally an interim order is not passed to stultify statutory provisions. However, there is no absolute rule to restrain interim orders being passed when an enactment is ex facie un-constitutional or contrary to the law laid down by this Court.
Further court has observed that there is no bar per se for the referring Bench to pass interim orders while sending matters to a larger Bench. In Ashok Kumar Thakur (8) v. Union of India (supra), K.S. Puttaswamy v. Union of India (supra), M. Nagaraj v. Union of India (supra), S.V. Joshi v. State of Karnataka (supra), P.A. Inamdar v. State of Maharashtra 20 , and Modern Dental College & Research Institute v. State of Madhya Pradesh 21 , this Court passed interim orders while referring the matters to a larger Bench. In view of the above, the referring Court is not disabled from passing interim orders merely because the matter is referred to a larger Bench.
THE DOCTRINE OF BASIC STRUCTURE
There are many opinions, observations in many landmark judgments of the HC & SC & juries too. Every time the concept of basic Structure has been interpreted from the different angle.
However, the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the Parliament of India. Key among these “basic features”, as expounded by Justice Khanna, are the fundamental rights guaranteed to individuals by the constitution. The doctrine thus forms the basis of the power of the Supreme Court of India to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this “basic structure” of the Constitution.
In 1973, the basic structure doctrine was formally introduced with rigorous legal reasoning in Justice Hans Raj Khanna’s decisive judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered.[1] However, in this landmark ruling, the Court adjudicated that while Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution. Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine, as propounded i n J u s t i c e K h a n n a ’ s judgement, has since gained widespread legal and scholarly acceptance due to a number of subsequent cases and judgments relying heavily upon it to strike down Parliamentary amendments that were held to be violative of the basic structure and therefore unconstitutional. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented.
THE CASES WHICH SET MARKS ON DOCTRINE OF BASIC STRUCTURE
Golaknath case In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. A bench of eleven judges (the largest ever at the time) of the Supreme Court deliberated as to whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution. The Supreme Court delivered its ruling, by a majority of 6-5 on 27 February 1967. The Court held that an amendment of the Constitution is a legislative process, and that an amendment under article 368 is “law” within the meaning of article 13 of the Constitution and therefore, if an amendment “takes away or abridges” a Fundamental Right conferred by Part III, it is void.
It amended the Constitution to provide expressly that Parliament has the power to amend any part of the Constitution including the provisions relating to Fundamental Rights. This was done by amending articles 13 and 368 to exclude amendments made under article 368, from article 13’s prohibition of any law abridging or taking away any of the Fundamental Rights. Chief Justice Koka Subba Rao writing for the majority held that:
• A law to amend the constitution is a law for the determinations of Article 13.
• Article 13 prevents the passing of laws which “take away or abridge” the Fundamental Rights provisions.
• Article 368 does not contain a power to amend the constitution but only a procedure.
• The power to amend comes from the normal legislative power of Parliament.
• Therefore, amendments which “take away or abridge” the Fundamental Rights provisions cannot be passed.
THE KESAVANANDA BHARATI VS STATE OF KERALA
Exactly after Six years later in 1973, the largest ever Constitution Bench of 13 Judges, heard arguments in Kesavananda Bharati v. State of Kerala. The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th Amendments. The Court held, by a margin of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”. The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter “Supreme Court Cases”. The findings included the following:
• All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.
• Ten judges held that Golak Nath’s case was wrongly decided and that an amendment to the Constitution was not a “law” for the purposes of Article 13.
• Seven judges held that the power of amendment is plenary and can be used to amend all the articles of the constitution (including the Fundamental Rights).
• Seven judges held (six judges dissenting on this point) that “the power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity”.
• Seven judges held (two judges dissenting, one leaving this point open) that “there are no inherent or implied limitations on the power of amendment under Article 368”. Nine judges (including two dissentients) signed a statement of summary for the judgment that reads:
Golak Nath’s case is overruled.
1. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
2. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.
3. Section 2(a) and 2(b) of the Constitution (Twentyfifth Amendment) Act, 1971 is valid.
4. The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part namely “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” is invalid.
5. The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.
6. The ruling thus established the principle that the basic structure cannot be amended on the grounds that a power to amend is not a power to destroy.
THE NINTH SCHEDULE (ART 31B)
The ninth schedule especially refers to Art 31b of the constitution, which provides “Protective Umbrella” to the laws, enactments enlisted under the ninth schedule, cannot be challenged in the court. This amendment was specially made to shield the enactments from challenging in the court of law. There are almost 284 enactments are enlisted in the ninth schedule.
However, In Maharashtra, a voice is raising on as to why the Maratha reservation was not enlisted in the ninth schedule to protect it from challenging in the court of law.
However, having as discussed above, any enactments, laws which violates Fundamental Rights, the basic structure of the constitution, cannot be enlisted in the ninth schedule. Further it can be challenged & would be under the scrutiny of the Apex Court, even if it is scheduled.
In this background, as India Sawney case cannot allow reservation beyond 50% thus, by referring Maratha Reservation to Constitutional Bench, the bench has questioned on constitutionality of The Maharastra Socially and Educationally Backward Classes (SEBC) Act, 2018 on the ground of Exceptional, Extra ordinary circumstances.
Now, it would be interesting to see, further observation, submission of state of Maharashtra to uphold the constitutionality before constitutional Bench.
The Author is columnist, practising advocate at Bombay High Court.