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 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...

Maratha Reservation : 50% Ceiling Not Absolute; If Situation Demands State Can Provide More Quota, Submits Rohatgi In Supreme Court

Mehal Jain

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