Recently, the Supreme Court struck down the claim to Maratha reservation, citing that the reservation ceiling in a state cannot exceed 50 per cent. The Apex Court stated that neither there were extraordinary circumstances to grant Maratha reservation nor the states had the power to decide Socially and Educationally Backward Classes. Aeshita Singh explains the nitty-gritty of the Maratha reservation judgment, citing its faultlines and implications.
By Aeshita Singh, a third-year law student at Symbiosis Law School, Pune and member of Lawctopus Writers Club.
In the past few days, the Maratha reservation case has caused quite a stir. This article will analyse the recent Supreme Court judgment where a five-judge bench declared the Maharashtra State Socially and Educationally Backward Act unconstitutional.
The article will first provide a brief context to the Supreme Court judgment and demand for the Maratha reservation. It will then proceed as an explainer for the Maratha reservation case, detailing the arguments and verdict. Finally, it will argue that the judgment could pose issues to the federal functioning, hampering the elevation of socially backward classes in the future.
Brief Context on Maratha Reservation: Why All the Hullabaloo?
The issue of Maratha reservation has existed since the 1980s. Especially after the Mandal Commission ( Indra Sawhney vs Union of India 1992) decision, there was an uproar by Marathas demanding reservation in jobs and education.
The National Congress Party (NCP) leaders kept insisting on the Maratha reservation, although a significant change came only in 2014.
In July 2014, the State government passed an ordinance allowing 16 per cent reservation for Marathas with an additional 5 per cent for Muslims. The Ordinance was enacted based on the recommendation of the Rane Committee constituted by then Chief Minister Prithviraj Chavan. However, the Ordinance was challenged in the Bombay High Court and subsequently got stayed, first by the High Court and eventually by the Supreme Court.
After the Bhartiya Janata Party (BJP)-Shiv Sena-led government came to power in 2014, they again promulgated the Maharashtra State SEBC Act. But, this time too, it was stayed by the Bombay High Court in 2015.
In 2016, the rape and murder of a 15-year-old from the Kopardi village Ahmednagar district in Maharashtra triggered agitations. Massive rallies demanding reservation were organised across the state. These agitations, followed by the suicides from the Maratha community, led to the formation of the Gaikwad Commission in June 2017.
After years of protests and rallies, in 2018, the Maharashtra State Socially and Educationally Backward Act (hereafter the 2018 Act) got passed in both State Assembly and Council.
When challenged, the 2018 Act was upheld by a Bombay High Court division bench in June 2019. The Bombay High Court held that the reservation was constitutionally valid but reduced the quota to 12 per cent from the earlier 16 per cent.
After which, the Apex Court stayed its implementation and referred the case to a larger bench. The larger bench headed by the Chief Justice of India threw out the claim to the Maratha reservation, striking down the 2018 Act.
Coming to the Present Case
What Did The Respondents Claim?
- 102nd Amendment :
The 102nd Amendment was introduced in August 2018. This Amendment added Article 338B and 342A in the Constitution.
- Article 338 B:
Article 338 B constitutionalised the National Commission for Backward Classes. This Article provided setting up the NCBC commission, composing a Chairperson, Vice-chairperson and three members.
The Commission had to perform duties like investigating matters related to the welfare of the SEBCs under the Indian Constitution, presenting reports to the President, and successfully implementing safeguards and other measures.
- Article 342A:
This Article mandates attaining Parliament’s approval before adding or deleting any community from the Backward List of communities. The Article empowers the President to specify the Socially and Educationally Backward Classes (SEBC) for a state or union territory.
The Attorney General, KK Venugopal, submitted before the Court that the 102nd Constitutional Amendment permitted the President to specify the SEBC in states and UT’s. However, these powers were with respect to the Central list only and cannot take away the states’ powers to do the same.
He relied on Article 15(4) and Article 16(4) of the Constitution. Under these Articles, the states have the power to recognise SEBC and take affirmative actions for their welfare. Therefore, contending that the 102nd Amendment didn’t curtail the powers of the articles as mentioned above. Hence, the states should be allowed to specify SEBC.
- The 50 per cent limit on reservation:
Mukul Rohtagi questioned the 50 per cent ceiling on the reservation decided in the Indra Sawhney case. He claimed that Article 15(4) and 16(4) did not stipulate any percentage when they were added.
He also argued that the Constitution being a living document, cannot remain stuck when the society is dynamic.
Moreover, in the Indra Sawhney case, four judges (Justice Jeevan Reddy and others) decided that the 50 per cent limit could be breached in extraordinary circumstances. Two other judges (Justice Pandian and Justice Sawant) concluded that the limit could be breached.
Hence there was no unanimity in the judgment as only three judges (Justice Thommen, Justice Kuldip Singh and Justice R.M. Sahai) held against breaching the limit. The TMA Pai judgment also mentioned that the 50 per cent ceiling could never be applied for Article 15 and 16.
Mukul Rohtagi further submitted that there had been some points listed in the Indra Sawhney judgment for extraordinary circumstances, but those are non-exhaustive.
- Judicial Review on Gaikwad Commission Report:
Before proceeding with the respondent’s argument, it is important to understand the Gaikwad Commission Report.
Retired Judge MG Gaikwad headed the Gaikwad commission. This Report had deduced that the Maratha community required reservation, suggesting 16 per cent reservation.
PS Patwalia supported the validity of the Report in the Court vehemently. He argued that the Report got accepted unanimously, which lead to the promulgation of the 2018 Act.
Reinforcing the Report’s integrity, he submitted that the due procedure was maintained and evidence was collected, limiting the scope for Judicial Review of the Report. Arguing, therefore, the Court couldn’t further investigate it and come to a different conclusion.
WHAT DID THE PETITIONERS CLAIM?
- The authenticity of the Gaikwad report:
It was contended in the Court that the Report by the Gaikwad Commission was not based on the fiscal data. Arguing that the Maratha community has been economically and politically dominant for the last 50 years.
It was very bizarre for the Commission to suddenly term the community as backward without any change in the circumstances. They claimed that the Gaikwad Commission did not have the power to go beyond the National Commission and State Committees’ findings, which indicated that Marathas were a forward class in Maharashtra till June 2013.
Further, it was posed that since the claim for the Maratha reservation was also rejected earlier in the Court in 2014, it was implausible that reservation is again required. The reservation claim was challenged in 2014 under Article 14, 16 and 19 of the Constitution, also challenged for violating the basic structure.
- The Indra Sawhney judgment holds ground:
Petitioners argued that the respondents claim to refer Indra Sawhney Judgment to a larger bench is baseless. They relied on several states where the reservation limit breached 50 per cent but got struck repeatedly.
The petitioner also argued that the limit of 50 per cent, decided by the Sawhney judgment, is an integral part of Article 14, 15 and 16 of the Constitution.
The petitioners also added that the extraordinary circumstances mentioned under the Sawhney judgment are restricted only to far-flung and remote areas.
Further posing that since Marathas are a socially progressive and prestigious community for decades and a part of the main lifestream in Maharashtra, they do not satisfy the list mentioned in para 810 of Sawhney judgment.
- Article 338(B) and 342(A):
It was submitted that the 102nd Constitution Amendment now contemplates identification by the National Commission of Backward Classes. Article 338(B) and 342(A) centralised the power to determine SCs and STs, and it would be absurd to believe that this shall violate federalism.
The petitioner argued that after the 102nd Amendment, the States could not identify Socially and Educationally Backward Classes. The State Governments are still free to decide the nature or extent of provision favouring Socially and Educationally Backward Classes identified according to Article 342A.
The Court mentioned the following points while striking down the Act:
- No extraordinary circumstances:
According to the Court, the Gaikwad Report mentioned no extraordinary circumstances. Therefore, in this case, exceeding the 50 per cent limit was in direct violation of equality under Article 14 and 16 of the Constitution.
Court also looked at the representation of the Maratha community in the public services in all the grades (Grade A, B, C, and D) and concluded that the community has adequate representation.
The Court stated that granting reservation more than the limit is unconstitutional in this scenario. Marathas also have substantial representation of 15.2, 27.85 and 17.97 per cent in Indian Administrative Services, Indian Police Services and Indian Foreign Services.
- Indra Sawhney Judgment 50 per cent limit is constitutional:
Justice Ashok Bhushan decided that the Indra Sawhney case has seen four decades and several constitutional amendments. The argument by Mukul Rohtagi did not hold ground as the issue has been followed in four constitutional judgments, which had upheld the constitutional validity of the 50 per cent reservation limit.
According to the Court, if this ceiling is breached,
“…the society won’t be based on principles of equality but on caste rule. This ceiling has been decided by placing reliance on principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets”
- States Can’t Identify SEBC:
With the majority of 3 to 2, this case declared that states no longer have the power to decide SEBC’s under 102nd Amendment.
Article 342(A), added by the same Amendment, stipulates that it’s the President who has the final say in identifying SEBC. After that, the Parliament will finally decide on the last list.
In this case, Justice S. Ravindra Bhat, Justices L. Nageswara Rao and Hemant Gupta upheld the constitutional validity of this 102nd Constitution Amendment. They agreed that the Amendment gave the President the power to decide the SEBC instead of the states.
However, the states can still participate by giving suggestions via the existing mechanisms and Commissions under Article 338(B).
Justice Ashok Bhushan and S. Abdul Nazeer, however, dissented this interpretation.
How Does This Affect Federalism?
In this judgment, we see that the Court decided that the Maratha community is adequately represented in all the public grade services, and hence their quota can’t breach the 50 per cent ceiling.
The question is whether the interpretation of the 102nd Constitutional Amendment by the Court is valid.
Article 15(4) enables states to have affirmative policies for the interests of SEBC. However, Article 16(4) also mandates that states cannot be stopped from making any reservations for citizens who are not adequately represented.
After this judgment, practically all the powers related to SEBC gets out of the states’ reach. Therefore, states have lost the ability to add and delete any backward community from the list.
The decision can ultimately exclude many communities, who were initially benefiting from the reservation scheme.
Another problem is that there are many backward communities exclusive to certain states. Many communities are backward only if they come from particular districts.
These peculiarities will make it extremely difficult for the National Commission for Backward Classes (NCBC) to make lists for the backward communities of all the states.
This judgment paired with the Amendment will damage the nation’s federal structure and further make the listing process of the SEBC more complex than it already was.
If the advice of governors of the respective states is considered for listing the backward classes that require a reservation, such a situation could have been avoided altogether.
In this way, the governors and President can reach a middle ground to add or delete the names of communities in the list.
Maharashtra Government’s Response to the Judgment
In an appalling move, the Maharashtra government scrapped the 33 per cent reservation in promotion for the Scheduled Castes, Scheduled Tribes, the Other Backward Classes and the Vimukta Jatis and Nomadic Tribes. The reservation was introduced in the whole of Maharashtra via the Maharashtra State Public Services Act in 2004.
It granted 13, 7 and 3 per cent reservation for Scheduled Castes, Scheduled Tribes, and de-notified tribes. It also offered 2.5-, 3.5- and 2-per cent for Nomadic Tribe B, C and D, respectively and 2 per cent for Backward Class.
Intelligent Speculations suggests that this was a reaction to the Supreme Court’s decision to strike down the Maharashtra State Reservation for Socially and Educationally Backward Classes Act 2018.
The decision is unfortunate, shocking and perhaps motivated by political gains to win over Marathas, who occupy 32 per cent of the state’s population. And Since Marathas have been politically and economically dominant, making this decision even more problematic.
This step could negatively affect 50,000 employees belonging to the marginalised communities.
Now that this order is scrapped, the vacancies will be filled based on seniority. But soon after this decision got some light, the Congress party, part of the current Maha Vikas-Aghadi Government, raised its discontent. Fearing a violent protest and Congress’ exit, the order was stayed, waiting for Law and Justice Department’s review report.
Reservation: Affirmative Action or Political Chip?
Affirmative action means policy-based actions to increase the numbers of socially marginalised groups in different fields like education and jobs. India also adopted such affirmative actions through reservation policies. These policies aimed at providing welfare and social upliftment for Scheduled Castes, Scheduled Tribes and Other Backward Classes.
However, these policies benefit the most privileged among the minorities. As a result, there exists an unequal distribution of resources among the lower castes, limiting the lower castes’ ability to grow socially and economically.
Apart from this, reservation is often politicised as an election bait. For instance, in 2019, ahead of the Lok-Sabha elections, Prime Minister Narendra Modi had announced a 10 per cent quota in jobs and education for economically backwards amongst the upper-caste.
It is important to mention here that Article 15 (4) and 16(4) of the Constitution do not mention the word ‘economic’. And even the Indra Sawhney judgment says that reservation must not solely be based on economic grounds. Plus, the timing of the announcement for reservation made it quite apparent that it was meant for the 2019 election gains.
Caste bears a permanent tint of damage upon our country. But at the same time, we need to revamp our reservation policies. There is no mechanism for yearly reviewing the progress of SEBC. The employment rate of SEBC in A grade services is still negligible as compared to D grade services. That means the effect of the reservation remains namesake.
The Maratha Reservation case further damages the integrity as to who qualifies as ‘backward’. We can only hope that in the future, we see a judgment that reverses the effects of Article 324(A) and preserves the federal structure of our nation.
 Dr Jaishri Laxmanrao Patil and Ors v. The Chief Minister and Ors., LL 2021 SC 243
 Kamal Sutar, Maratha reservation: What has happened so far, INDIA TODAY, https://www.indiatoday.in/india/story/-maratha-reservation-what-has-happened-so-far-1812483-2021-06-08
 Shubhangi Khapre, Explained: How Marathas got reservation, and what happens now, THE INDIAN EXPRESS, (10 June 12:48PM), https://indianexpress.com/article/explained/explained-how-marathas-got-reservation-and-what-happens-now-7303056/
 Byju’s, 102nd Amendment Act, BYJU’S, (9 June, 11:27 PM), https://byjus.com/free-ias-prep/102nd-amendment-act/
 T.M.A. Pai Foundation and Ors. (I) vs State Of Karnataka and Ors, 1994 AIR 2372.
 Alok Deshpande, Explained | Why were Marathas granted reservation? THE HINDU, (31 May 4:45 PM), https://www.thehindu.com/news/cities/mumbai/explained-why-do-marathas-need-reservation/article34488110.ece
 Radhika Roy, Supreme Court Strikes Down Maratha Quota; Says No Exceptional Circumstance To Grant Reservation In Excess Of 50% Ceiling Limit, LIVE LAW, (31 May 5:17 PM), https://www.livelaw.in/top-stories/maratha-quota-in-excess-of-50-ceiling-limit-unconstitutional-supreme-court-173617
 Ashok Kini, ‘To Change 50% Reservation Limit Is To Have A Society Which Is Not Founded On Equality But Based On Caste Rule’: SC Refuses To Revisit Indra Sawhney Judgment, LIVE LAW, (31 May 5:33 PM), https://www.livelaw.in/top-stories/sc-refuses-to-revisit-indra-sawhney-judgment-50-ceiling-limit-reservation-173670
 Supra, note 8
 Constitution of India, art. 324(A)
 Constitution of India, art. 338(B)
 Justice AK Rajan, An overbearing national OBC commission in the making, FORWARD PRESS, (31 May 7:39PM), https://www.forwardpress.in/2017/04/an-overbearing-national-obc-commission-in-the-making/
 Supra note, 12.
 Anurag Bhaskar, Modi govt’s 10 per cent quota for upper caste poor doesn’t stand the test of Constitution, THE PRINT, (31 May 8:03PM), https://theprint.in/opinion/modi-govts-10-per-cent-quota-for-upper-caste-poor-doesnt-stand-the-test-of-constitution/174419/