The Maratha Reservation judgment: Extraordinary Circumstances warrants reservation to exceed 50% cap

The Bombay High Court upheld the State government’s legislation providing for reservation for the Maratha community.

A Division Bench of Justices Bharati Dangre and Ranjit More refused to quash the Maharashtra State Reservation for Seats for Admission in Educational Institutions in the State and for appointments in the public services and posts under the State (for Socially and Educationally Backward Classes) [SEBC Act], 2018.

Below is a summary of the 487-page judgment authored by Justice More.

Background

In July 2014, the Maharashtra government had passed an ordinance providing for 16 percent reservation for the Maratha community. The same was challenged before the Bombay High Court, which passed an interim order staying the implementation of the ordinance. This order was then challenged before the Supreme Court, which ultimately dismissed the challenge.

During the pendency of the matter before the High Court, the State government passed the Educationally and Socially Backward Category (ESBC) Act providing for reservation for the Maratha community.

On the ground that the ESBC Act and the ordinance were identical, the High Court stayed the implementation of the former in April 2017. Thereafter, the State government constituted the Maharashtra State Backward Class Commission, which prepared a report and recommended reservation in favour of the Maratha community. This report forms the basis of the SEBC Act, 2018.

A Bill calling for reservation for the Maratha community was then tabled in the State Assembly, and the SEBC Act was eventually passed. The Act came to be challenged before the High Court by a host of petitioners.

Contentions of the petitioners

The SEBC Act of 2018 was assailed by the petitioners as being a fraud on the Constitution of India,  as it proposed to hike the reservation in Maharashtra from 52 percent to 68 percent. This, it was contended, was in violation of the Supreme Court’s judgment in Indra Sawhney v. Union of India.

It was also argued that the reservation for the Maratha community would affect the seats in the general pool of candidates and that the reservation was nothing but a desperate attempt by political parties to appease the Maratha vote bank.

The next point of contention was that the SEBC Act was passed based on the recommendations of Justice Gaikwad Commission Report, which the petitioners claim, did not have any empirical data to conclude that the Maratha community is socially and educationally backward.

The legislative competence of the State to enact such a law was also challenged on the ground that the interim order of a Division Bench of the High Court passed in July 2014, staying the implementation of the ESBC Act 2014, was still in effect.

Moreover, it was contended that the Act would be in violation of Article 14 of the Constitution, as it involved creating a classification that was not legally tenable.

It was further contended that after the Constitution (102nd Amendment) Act, which came into force with effect from August 2018, the State legislature is denuded of its power to declare a particular class to be socially and educationally backward.

Contentions of the State

Before the High Court, the State rebutted each of the petitioners’ contentions. On the point of extraordinary circumstances warranting the need for providing reservation to the Maratha community, the State contended that the following facts needed to be considered:

(a) Gradual deterioration in educational and social backwardness of Marathas;

(b) Deterioration in income as well as the desperation of families to survive;

(c) Substantial backlog in services under the State;

(d) Increase in the number of suicides as a result of form indebtedness and shift to manual labour;

(e) Inability to raise the standard of living as a result of adverse conditions.

It also claimed that the interim order of July 2014 was ineffective, as that matter had become infructuous with the repealing of the ESBC Act, 2014.

It was further argued that the enactment is in consonance with the provisions of Article 16(4A) & 16(4B), the validity of which has been affirmed by the Supreme Court in Nagaraj v. Union of India. 

Moreover, it was claimed that the Constitutional Amendment of 2018 does not affect or alter the powers or functions of the State Backward Class Commission.

He would submit that, the highest farmers suicide in the community reflects its plight and the extraordinary situation and exceptional circumstances would justify exceeding the limit of 50 percent if at all it exists

Here is a summary of the High Court’s judgment:

2014 Interim order

As regards its own interim order passed in 2014 staying the operation of the ESBC Act, 2014, the Bench noted that at that time, the State had not conducted an exercise to establish the backwardness of the Maratha community. However, before passing the SEBC Act, the State conducted research to show that the Maratha community was disadvantaged.

“The State Government has thus, attempted to remove the basis of the judgment which earlier held that there was no quantifiable data before the State before categorizing Maratha community as a backward category and in absence of this data, the increase in proportion of reservation from 52% to 68% was found to be not justiciable.”

Therefore, it held that when the cause of invalidity of a legislation is removed, passing a new legislation on similar lines cannot be considered as an encroachment upon judicial power.

Effect of the 102nd Constitutional Amendment

The Bench considered the argument that after the 102nd Constitutional Amendment, the State Backward Class Commission would cease to function automatically, and would therefore not be competent to add communities to the list of backward classes. The report of the Select Committee on the 123rd Amendment Bill 2017, which was the precursor to the amendment, was considered by the Bench. It states,

“In the State List, the States are free to include or exclude in their backward classes list. This Constitutional amendment does not affect or alter in any way the present powers or functions of the State Backward Classes Commissions and their powers for exclusion or inclusion of backward classes in the State Backward Classes list shall remain unchanged.”

Reference was also made to Article 342A of the Constitution, introduced by the 102nd amendment. This new provision calls for the identification of communities in States as socially and educationally backward classes by the President, in consultation with the Governor of the state.

The Bench considered scope and width of Article 342A and whether by insertion of the said Article, the State government is deprived of its power to specify the socially and educationally backward classes. In this regard,  the Bench held,

“…the restriction imposed that it is only the Parliament which may include or exclude from the list restrict itself to the Central List only…

…The existence of central list of backward classes is distinct from the list of the State which is prepared by the State for translating the enabling power conferred on it and in any contingency, Article 342-A cannot be read to control the enabling power conferred on the State under Article 15 and 16.”

Limited scope of Judicial Review

While expressing the need for courts to be circumspect while reviewing policy decisions of governments, the Court noted that there is no set or recognized method in identification of the backward class of citizens and there is no law or other statutory instrument prescribing the methodology. 

It further noted that the Supreme Court has held that it is for the authority appointed by the State to identify the backward class of citizens, to adopt such approach and procedure as it thinks appropriate. So long as the approach adopted by the authority is fair and adequate, the Court has no say in the matter, the Bench concluded.

Maharashtra Backward Classes Commission Report

The next point of consideration for the Bench was whether the commission has established the backwardness of the Maratha community so as to justify the reservation granted to it.

One of the issues considered was that of farmer suicides in Maharashtra. It was noted in the committee’s report that a majority of these farmers were from the Maratha community.

“Out of 43629 families surveyed, the commission found that 345 persons from equal number of families have committed suicide from all the caste groups during last 10 years. Out of these 345 persons, 277 (80.28%) were from Maratha families, which is exorbitantly high proportion as compared to other castes indicating the grave state of socio-economic plight of Maratha community warranting urgent attention of the State to address this issue.”

The commission also created a marking scheme to determine whether the Maratha community was indeed backward. A total of 25 marks was split among three heads – social backwardness (10 marks), educational backwardness (8 marks), and economical backwardness (7 marks). The Marathas were to be considered backward if they obtain more than 50% of total marks, i.e., 12.5 marks out of 25 marks. The commission arrived at a rating of 7.5, 8, and 6 marks for each head, amounting to a total of 21.5 marks out of 25.

Classification

On the argument that the classification of the Maratha community as a backward class was violative of Article 14, the Court held,

“The very idea of classification is to remove inequality and when classification is made by creating a separate class of SEBC’s and inclusion of Maratha community in it in order to attain social justice and advancement of this community, we do not find the classification to be unreasonable…”

The Court also delved into the history of the Maratha community, which was originally classified as a backward community.

“The State has the power to determine who should be regarded as a class for the purposes of legislation and it can then segregate this class based on its distinct properties. The State has carved out an SEBC class under the Enactment of 2018 which include the Maratha class. The affirmative action of the State, though apparently appear to be discriminatory is in reality aimed at attaining equality by eliminating the de facto inequality.”

It also held that the tests for reasonable classification laid down by the Supreme Court in a number of cases were fulfilled in the present case.

Does the 50 percent cap on reservation exist?

The Court noted that the 50 percent limit on reservations found mention in Article 16 (4B) inserted by the Constitution (85th Amendment) Act of 2001.

However, it was highlighted that the Supreme Court has in a number of cases, including in Indra Sawhney, held that the 50 percent cap may be exceeded in view of extraordinary circumstances. Reference was made to a seven-judge Bench judgment in State of Kerala v. NM Thomas, wherein it was held,

“while 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this county and the people…In doing so, extreme caution is to be exercised and special case made out.”

In this light, the present Bench noted that the adequacy of representation in the services will have to be proportionate to the portion of the backward classes in the total population. It thus concluded,

“The judgment of Indra Sawhney read in its proper perspective and in benevolence of advancing cause of the weaker sections under Articles 15 and 16 the Constitution does not impose any fetter on State’s power to exceed reservation more than 50% in a deserving case. This is however, subject to the State providing valid justification in exceeding the limit of 50%.”

Extraordinary circumstances

On the topic of the extraordinary circumstance warranting the exceeding of the 50 percent cap on reservation in the State, the Bench held,

“The erroneous exclusion of the Maratha community from reservation itself contribute to the extra-ordinary situation that this community without determination of its backwardness was kept out of the benefits conferred on the backward classes…”

It was further noted,

“Though it is attempted to canvass before us that Maratha community is socially advanced and the instances have been cited to inform that several Chief Ministers of the State, belonged to Maratha community, that in our opinion, do not make the entire community forward or advanced. 

A community is a group of people having a particular characteristics in common and when this community is stratified on economic factors, then just because one part of the community has progressed do not wipe out the backwardness of the remaining part.”

Quantum of Maratha reservation

While upholding the SEBC Act, the Court noted that the percentage of reservation prescribed by the state, ie 16 percent, was not warranted.

The report of the Commission had carved out 12 percent reservation for the community for education purpose and 13 percent reservation to the posts/seats in the services in the State. Therefore, the Court held,

“…we declare that the quantum of 16% of reservation under Article 15(4) and (5) as prescribed in sub- section (a) of Section 4(1) of the impugned Act and the quantum of reservation under Article 16(4) prescribed by sub-section (b) of Section 4 (1), over and above, the quantum prescribed by the Maharashtra State Backward Class Commission is quashed and set aside.”

The judgment ends on a hopeful note, with the Court urging the State to review the situation in the “near future”.

“We hope and trust that the said situation would be reviewed by the State in the near future so that it follows the rule of caution and do not forever continue with this “Exceptional circumstances and extraordinary situation”.”

[Read Judgment]