Maratha Reservation: SC Urged to Tag Matter with Petitions Challenging EWS Reservation

Nov 26, 2020

The current issue on the Maratha Reservation started as a state ordinance promulgated by the Maharashtra government on 9th July, 2014 granting 16% reservation in educational institutions and public employment services including the Maratha community. Soon after this, the Socially and Educationally Backward Classes Act, 2014 was enacted by Maharashtra, upholding the same. The Maharashtra State Backward Class Commission that was established in 2017 recommended 12% and 13% reservations for Marathas in Educational Institutions and Public Services respectively. The Socially and Educationally Backward Classes Act, 2018 enacted on 29th November 2018, in its provisions exceeded the recommended quotas, and this led to various petitions in the Bombay HC challenging the constitutional validity of the Act. The Indra Sawhney v. Union of India Case in a 9-Judge Constitution bench judgement upheld the decision of the Union government to reserve 27% government jobs for backward classes, provided that the creamy layer was eliminated. The Court also examined the scope and extent of Article 16(4) in detail and stated that all the reservations together should not exceed 50%. Petitioners argued that the 2018 Act was invalid because it exceeded the limit set in Indra Sawhney. It was also alleged to be violative of Articles 14, 16 and 19 of the Indian Constitution. 

On 1st September, The Supreme Court heard arguments concerning the reference of the Maratha reservation to an 11-Judge Bench. The main contention for doing so was that the Indra Sawhney judgement was given by a 9-Judge Bench and considering that the reservation cap currently exceeded 50%, the state would be in a position to rule in favour of increased reservation only if the Bench had the power to overrule the previous Bench. Senior Advocates Mukul Rohatgi, Kapil Sibal, DR. Abhishek Manu Singhvi and Chander Uday Singh argued in favour of the reference. 

Sr. Adv. Mukul Rohatgi submitted to the Court the Mandal Commission's report which stated that the provisions needed to be reviewed in 20 years, however, 30 years had already gone by. He also contended that it was not fair to judge this case based on the Indra Sawhney judgement as to that only considered Articles 15(4) and 16(4) of the Constitution of India. Post this judgement, the 102nd Constitution Amendment Act, 2018 had been enacted, providing constitutional status to the National Commission for Backward Classes (NCBC) and also inserting Articles 338B and 342A as well as bringing about changes in Article 336. It further added Articles 15(5) and 16(5). The Constitution (One Hundred and Third Amendment) Act, 2019, added Articles 15(6) and 16(6) to the Constitution of India and introduced reservations for the Economically Weaker Sections (EWS). Therefore, the Maratha Case had to take into account the new provisions and changes before making a decision. On these grounds, he requested that the new provisions also be interpreted, and the EWS reservation issue be tagged with the Maratha reservation as they both dealt with similar contentions. He claimed that "it is not appropriate for this case to be decided without that case being heard. So, it's better if this case is tagged with that one." His main supporting argument was his reference to the proviso of Article 145(3) based on which he established that the proviso could not be read in isolation without the main part of the provision and that they had to be read together to make the best conclusions. This made a strong case to hear the case along with the EWS reservation and also made it clear that the Bench can refer the issue at any stage. As he continued with his arguments, he brought up the fact that 28 states had already breached the 50% reservation limit and that even the constitution had breached the limit, so the logical order of business would be to tag the matter with the one before the constitution bench. Senior Advocate Kapil Sibal began his submissions on similar lines, stating that the 50% cap breach took place the moment the parliament exercised constituent power and this breach can also be seen as a violation of the basic structure of the constitution and the equality clause under Article 14.

He also brought up that apart from the pre-existing 50% reservations, the SEBC had provided for another 10%, thus making it 60% reservation. If the EWS is also upheld, it will bring the total reservation to a whopping 70%. The question of what would be left for others can be answered by looking at the findings of the Bombay HC, which shows that 85% of Maharashtrians belong to backward classes. Furthermore, Indra Sawhney was based on the 1991 census since which a lot has changed. Therefore, considering these factors, the 50% limit should be made flexible. Sr. Adv. Dr Abhishek Manu Singhvi stated that this was the first time Articles 15(4), 16(4), 338 and 342A would be decided in conjunction. He also pointed out the contradictions in the petitioners who initially made the case out to be a major constitutional issue and then changed their stance and contested against the reference issue. He elaborated that the aim of proviso 145(3) was to enlarge the scope of the power of the Supreme Court, not limit it and that the Supreme Court can refer the case whenever it pleases. The opposition stated that the Indra Sawhney established a relaxation of the strict 50% reservation rule in extraordinary situations and that since the state has failed to establish this without any doubt, there is no reason even to exceed the 50% cap and to refer it to a higher bench.

The Court, on 9th August 2020, declared that it was referring the case to a higher constitution bench and appointed the Chief Justice of India, SA Bobde to constitute the Bench. Proceedings regarding this case are still in progress.