Maratha Reservation : 50% Ceiling Not Absolute; If Situation Demands State Can Provide More Quota, Submits Rohatgi In Supreme Court
In the Maratha reservation matter, a Constitution Bench of the Supreme Court on Wednesday decided to hear from January 25 the challenge against the the constitutionality of the Maharashtra Socially and Educationally Backward Classes (SEBC) Act, 2018, which provided for a quota to Marathas in jobs and education.The bench refused to pass any order to lift the stay put by a three-judge bench...
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In the Maratha reservation matter, a Constitution Bench of the Supreme Court on Wednesday decided to hear from January 25 the challenge against the the constitutionality of the Maharashtra Socially and Educationally Backward Classes (SEBC) Act, 2018, which provided for a quota to Marathas in jobs and education.
The bench refused to pass any order to lift the stay put by a three-judge bench in September this year on making appointments and admissions under the Maratha quota. The stay order was passed by the 3-judge bench which referred the appeals to the larger bench
Beginning his submissions for the state of Maharashtra, Senior Advocate Mukul Rohatgi advanced:
"This case concerns the independent reservation given to the Marathas on account of their educational and social backwardness. This is not a part of the OBC. In recent scenario, there was a legislation of 2014 to provide reservation to the SCBC. It was stayed by the High Court. Finally, in 2018, the Assembly passed the Act. The Assembly approved a report by the Justice Gaikwad commission on whether Marathas can be treated as a separate class for the purpose of independent reservation. The commission had compiled the data extensively and recommended that the Marathas constitute 30% of the population of the state and deserve a reservation distinct from OBC. Then, there was the legislation in 2018 which provided for a 16% reservation to the Maratha in education and the service of the state".
"The existing reservation in the state as on the commencement of this law was 52%, being 13% to the SC, 7% to the ST and 32% to the OBC. Now, in addition, there is 16% to the Marathas. The matter was challenged in the High Court. There was no interim order and the matter was finally disposed off by a 500 page judgement. The High Court canvassed all cases from N. M. Thomas to Balaji to Indra Sawhney to Ashok Thakur and said that the report is valid and so is the legislation, even though the 50% limit is exceeded. The 50% ceiling was set by a nine-judge bench in 1991 in the Indra Sawhney case. One way to look at it would be that if 50% reservation is exceeded, the majority then becomes a minority. But this is not a rule cast in stone forever and if the situation demands that more backward people want upliftment, the Constitution empowers the Centre and the states to do so", he continued.
"Indra Sawhney also envisaged the crossing of the 50% ceiling in exceptional circumstances. A majority of the states in India exceed the 50% mark. In some states, the reservation stands at 60, 65 or even 70. One of the oldest states which reached 69% in 1993 was Tamil Nadu", pointed out Mr. Rohatgi.
He indicated that it had been the state's stand before the High Court that there is a constitutional duty for uplifting the backward classes, be it socially backward or economically backward or educationally backward. These are people who have faced years and years of oppression in the system, that this is generally a deprived and poor class which does not have a share in employment. To give them a share in employment, it is important that they have a share in education also. "If they don't have education, it snowballs into no employment", he contended.
"The reservation for SC/ST was also supposed to be only for 10 years initially. Now, from 1950, we are 70 years later, and the Parliament keeps extending it every 10 years", he argued.
"Employment is under the state and education is also split into various sections. Perhaps more students can be accommodated in the medical colleges in addition to the general population. Of course, we need the approval of the regulatory bodies like the MCI in this. But the state can increase the number of seats without disturbing the general quota by introducing supernumerary posts in B. Ed etc. There can be an amelioration", explained Mr. Rohatgi.
"You are right that the matter requires early decision. Because the Act has been stayed by the judgement on the ground that the benefits are not percolating down… It is better that we decide the matter finally rather than considering this application for vacating the interim order", said Justice Bhushan.
Mr. Rohatgi pointed out that when the September 9 interim order was passed, there were 2185 candidates in respect of whom the entire recruitment process had been completed and who had been declared successful, but on account of the pandemic situation, no appointment order was issued. Having crossed all hurdles, he prayed that for these people, who had undertaken the entire employment process and were about to receive the appointment order, there is no "guillotine" on account of the September 9 order.
"All appointments prior to the order would survive", said Justice Bhushan.
"No, I am not on prior. But on September 9, these 2185 people had crossed the one year long process. If the order had come 20 days later, they would have even got their appointment order. I am only seeking a modification of the order in respect of these 2185, who are now suffering on account the circumstances", pressed Mr. Rohatgi.
It may be noted that the state had earlier assured the court that it would not proceed with the recruitment process to fill up the vacancies on the basis of 12 per cent Maratha reservation till September 15, except for departments, Public Health and Medical Education and Research.
"But in your affidavit you had only mentioned of two departments. There was no mention of these others", pointed out with Justice Bhushan. "You said that no regular appointments shall be made in terms of the GR dated May 4, 2020 till September 15, 2020 except these 2 departments. How did you conduct the selection for these others?", asked Justice L. Nageswara Rao.
"There was a ban by the state...", Mr. Rohatgi sought to explain. "So then wait for some more time. Early decision is needed. Whether the Act survives or not, it is important for the state and for these people", repeated Justice Bhushan.
"Let these 2185 people not face the ban as only the last document remains to be given to them. Please allow us to create supernumerary posts for these 2185 as had been allowed in the case of Tamil Nadu", pressed Mr Rohatgi.
"On account of the pandemic situation, there are no appointments in any state. Please wait for some more time. We will list this matter for final hearing in the third or fourth week of January and have day-to-day hearings. We will start and finish the whole matter, rather than devoting time on hearing this application for vacating the stay", said Justice Bhushan.
"What is the harm in allowing us to create supernumerary posts? It was allowed in Tamil Nadu...", argued Mr. Rohatgi. "The supernumerary posts would be an unnecessary financial burden on the state", said Justice Bhushan. Justice Ravindra Bhat also pointed out that Tamil Nadu was a different context as the amendment had gone to the Ninth Schedule in that case.
Mr. Rohatgi pointed to the challenge to the 103rd constitutional amendment Act before the Supreme Court, by virtue of which Articles 15(6) and 16(6) had come to be inserted in the Constitution, providing 10% reservation to the economically weaker sections. He pointed out that the challenge was pending before the Chief Justice and no stay has been granted there.
"That is an entirely different issue", said Justice Bhushan. "With all due respect, it is an identical issue. The only challenge is to the breach of the 50% limit by adding 10% for EWS. There is no stay there. The court can't have two standards on the same issue", argued Mr mr Rohatgi.
"Is there any judgement of the Supreme Court on the power of interim order?", asked Justice Rao. "No", replied Mr. Rohatgi.
Senior advocate Arvind Datar, for one of the petitioners, however, contended that there is one, citing a judgement of the top court holding that where a reference is made under Article 145(3), any interim order which is to be passed may not only be at the behest of the referral bench or the constitution bench
Mr. Rohatgi argued that he has cited five judgements of the apex court where on the matter being referred to the larger bench, the stay also comes to be granted by that bench only.
"It depends on the facts and issues of each case as to whether interim order has to be passed or not", said Justice Bhushan. "So somewhere the bench passes the order, somewhere the Constitution bench passes the order? It can't depend on the facts", argued Mr. Rohatgi.
"We had heard you for full 4 to 5 days! Where is the question of vacating the stay", asked Justice Rao. Even as Mr Rohatgi contended that now there is new data before the court which was not present earlier, Justice Ravindra Bhat explained that there were two parts to this order- one, being education, which the bench had let go, and the other being employment. "We were conscious that if the recruitment is allowed, third-party equity will be built", explained Justice Bhat.
"But there are hundreds of judgements to be cited. It is not a matter for VC hearing", argued Mr. Rohatgi. "There is no other method method of hearing right now and we are anyway hearing so many matters by this platform only", observed Justice Bhushan.
"You may decide my application today or in 10 days. After we have received vaccine shots, we can come in court and we can argue the matter physically in January or in February. Please list this matter at the end of January for directions and for physical hearing. It is too big a matter to be heard by video conferencing", pressed Mr. Rohatgi.
"We went through this earlier. We can't keep going on in rounds", said Justice Rao.
Senior advocate PS Patwalia, also for the state, sought to advance his case that if the number of vacancies are in excess, the process can be undertaken. "I agree with Mr Rohatgi that on the opening of the courts in February, we may have a physical hearing in open court. The interim order had come in the first place because we wanted physical hearing", he said.
Justice Bhushan reiterated that the bench shall give a full opportunity of hearing to all the stakeholders and decide all the issues finally.
Senior advocate Kapil Sibal pointed out that there are several states across the country which have a reservation of more than 50%. He pointed out that any decision of the bench on this point of breaching the 50% ceiling will affect all the states including Tamil Nadu. He sought that the bench should collate all matters on this point which are pending before it. "We are on a particular point of Maharashtra only. The Maratha reservation has to be seen in that context", pointed out Justice Bhushan. "But the limit is 50%. It has been observed in several decisions", pressed Mr Sibal. "There are other points also that we have to consider- whether the class is backward or not?", noted Justice Bhat.
"Some states may have significantly more than 50% or marginally over 50%. The facts of each case are different. So why should we involve all of them here?", observed Justice Bhat. "So what Your Lordships are saying is that the 50% ceiling can be crossed and it shall be justified from state-to-state?, asked Mr Sibal. "There are exceptions laid down in Indra Sawhney also", said the bench. "But this is not applicable to Tamil Nadu", said Mr. Sibal. "We don't know. And why should we go into that? Tamil Nadu is on a different footing, like I said", repeated Justice Bhat. "But there are judgements of Your Lordships that even Ninth Schedule amendments can be struck down on account of Article 14", argued Mr Sibal.
"There is the new constitutional amendment for reservations to the EWS to the extent of 10% over and above the 50%. If you uphold that, then there will be 60% reservation. You think that is different because the context is different, but the principle remains the same. If the Maratha prove that they are backward, will you allow a reservation beyond 50%? It impacts all of India", pressed Mr Sibal.
"Both you and the state had argued before the High Court that even though Indra Sawhney places the ceiling , it envisages exceptions to cross the 50% limit also. We had a three judge bench earlier and a five judge bench now, so we are obviously bound by the nine judge bench. So how can we bring in the other matters here?", asked Justice Bhushan.
"I had made a reference to the 1931 Census on the backward classes. Now we are in 2020. The whole world has changed. We need to look at things with fresh eyes. I never said that we are bound by Indira Sawhney. The state had said that", replied Mr. Sibal. "What I had said was that though the Indira Sawhney judgement places the 50% limit, it can't be cast in stone", corrected Mr Rohatgi.
"Indira Sawhney needs to be revisited. Your Lordships need to have a fresh lay of the land. This matter will have huge societal implications. Please don't decide the problems of 2020 based on the data of 1931. There are backward classes throughout India. Mandal data has also not been updated. Please don't decide Maharashtra in an isolated fashion", argued Mr Sibal.
On the point of reconsideration of the Indra Sawhney decision, Senior advocate Ranjit Kumar pointed out that the same exercise has already been undertaken in the case of State of Punjab v. Davinder Singh, though in a different context. "The judgement throws light on why Indra Sawhney should be reconsidered. The question of whether 50% limit can be breached or not affects everybody", he pointed out. In State of Punjab v. Davinder Singh (2020), the Supreme Court was called upon to examine the validity of the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006. The law created a sub-classification within the SC community and said that 50% of the SC quota would go to the Balmikis and Mazhabi Sikhs in Punjab. In 2014, a bench of three judges of the court opined that Chinnaiah needed to be reconsidered by a larger bench. Now, a bench of five judges in Davinder Singh has asked for the case to go before an even larger bench.
Senior advocate Abhishek Manu Singhvi pointed out that Justice B. P. Jeevan Reddy had in the Indira Sawhney judgement in several paragraphs made a sharp distinction between Articles 15(4) and 16(4) and had stated that the 50% limit is applicable only for 16(4). "Your Lordships continuing the restraint would be contrary even to the main judgement", he asserted.
Senior advocate Gopal Sankaranarayanan raised the issue that if the 102nd amendment and the correctness of the High Court judgement is to be considered as regards the 50% mark, different written submissions would be required to be filed, as against if Indra Sawhney is to be reconsidered. "We can't limit anybody. They can take whatever line of argument they want", clarified Justice Bhushan. Mr. Sankaranarayanan also sought that since this is a state issue and involves the challenge to the 102nd amendment, notice be issued to the Attorney General. The bench agreed
Another advocate pointed out that periodic review is sine qua non for Indira Sawhney- "In Maharashtra, since 1967 there has not been even a single review. The High Court applied Indra Sawhney in entirety. I agree with Mr. Sibal that this piecemeal approach will destroy the social fabric, it will allow every state to adopt a separate policy". He sought that the necessary parties may be added in the proceedings before the court. "There will be no impleadment. We can hear the interveners at the end. The parties before the High Court are before us. We won't increase the number of parties", observed Justice Bhushan.
Another advocate raised the issue of 365 open category and SC/ST candidates whose selection process has been completed in June this year and who have now been left hanging in the lurch on account of the September 9 order of this court as the government is refusing to make any appointments. "The court has not stopped the government from making appointments. But it cannot implement the Act", said Justice Bhushan. Mr. Rohatgi argued that no mandamus can be given that the state should make the appointments, and that the advocate may be asked to go before the High Court in a writ petition as this application was totally misconceived and had nothing to do with this case. Finally, liberty was granted to the advocate to withdraw his application to take recourse to appropriate proceedings.
Another advocate, for one of the petitioners, pointed out the missing dissent opinion of the Backward Classes Commission. Justice Bhushan directed Mr Rohatgi to take note of the submission and incorporate the same. The advocate pointed to a November judgement of the Bombay High Court allowing the SEBC candidates to enjoy the EWS seats so that there is no prejudice. Besides, he sought for a notice to the Supreme Court Bar Association, claiming that "celebrity lawyers may subsequently say that this was a challenge to the 102nd amendment".
Background
The Maharashtra State Reservation (of 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, originally provided 16% quota to the Maratha community in education and jobs respectively. 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 as recommended by Backward Commission.
Referred as the question involved require interpretation of the Constitution (102nd Amendment) Act, 2018
According to the applicants [who filed application seeking reference to larger bench], Articles 338-B and 342-A inserted by the Constitution (102nd Amendment) Act, 2018 fall for consideration of the Court for the first time and that there is a need for reconsideration of the judgment of this Court in Indra Sawhney v. Union of India , especially after the Constitution (103rd) Amendment, 2019 introduced certain changes to the Constitution of India.
The bench headed by Justice L. Nageswara Rao disagreed with the contention that these appeals require reference to a larger Bench on the ground of the extent of reservations. It said:
Undoubtedly, this Court in Indra Sawhney (supra) held that reservations contemplated in Article 16 (4) should not exceed 50 per cent except in certain extraordinary situations. This Court in Indra Sawhney (supra) was of the opinion that extreme caution has to be exercised and a special case must be made out for exceeding the limit of 50 per cent. The ceiling limit of 50 per cent on reservations has been re-affirmed by this Court in M. Nagaraj (supra). As the question relating to the extent of reservation has already been decided by this Court, it cannot be said that any substantial question of law as to the interpretation of the Constitution arises in this case.
The bench, also comprising Justices Hemant Gupta and S. Ravindra Bhat, observed that it finds force in the contentions raised regarding the interpretation of the Constitution (102nd Amendment) Act, 2018.
One of the issues that was considered by the High Court at the instance of the writ petitioners is whether the Constitution (102nd Amendment) Act, 2018 affects the competence of the State Legislature to declare a particular caste to be a socially and educationally backward class. According to the writ petitioners in the High Court, the State Legislature has been denuded of this power after the Constitution (102nd Amendment) Act, 2018 came into force. The High Court rejected the said contention and upheld the legislative competence of the State Legislature. There is no authoritative pronouncement on the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018. We are satisfied that interpretation of Articles 338-B and 342-A, which are inserted by Constitution (102nd Amendment) Act, 2018, involves a substantial question of law as to the interpretation of the Constitution and the determination of such question is necessary for the disposal of the Appeal. Thus, as mandated by Article 145 (3) of the Constitution of India, these Appeals require to be considered by a larger Bench. In view of our decision to refer these Appeals to a larger Bench, we do not consider it necessary to adjudicate on the other points raised by the applicants.
While referring the matters to larger bench, the Court observed:
As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these Appeals are referred to a larger Bench. These matters shall be placed before Hon'ble The Chief Justice of India for suitable orders.
To grant interim order, the bench observed that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent rule expounded in Indra Sawhney judgment. 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, it said.