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Basics of the issue
Before starting with the issue related to the reservation of the Maratha quota in Maharashtra, it is important and pertinent to understand about the basics and background of this whole concept of Maratha reservation. Thus, starting with the Marathas, the Marathas are a union of castes comprising of farmers, landlords and combatants. The Marathas are classified into top-layer Marathas holding surname titles such as More, Shirke, Bhosale, Jadhav, Surjuse who are considered as the Kshatriyas or the warrior caste and the remaining Marathas belong to the subcaste termed Kunbi holding surname titles such as Katode, Bhuse, Khokle, Shende who belong to the peasant class. This bifurcation is not held true currently but existed during the Maratha empire.
The main language or in other words the mother-tongue of the Marathas is Marathi. Most Marathas have Marathi as their mother-tongue but not all Marathi speaking population falls under the cadre of Marathas. Talking about the latest statistics, the current Maratha population as in regard to the farmers is 13.7 million. The backbone of this whole Maratha quota issue is this class of the Maratha population that seek reservation in the prevailing system. According to the last census which was counted, the Marathas are a dominant caste when it comes to handicaps. The Maratha Chief Ministers who are in power in the state of Maharashtra are not entirely representative as they fall under the creamy-layer category.
Timeline of Events
It was in the year 1997, when the Maratha Mahasangh and the Maratha Sevasangh organized an agitation rally for reservation of the Maratha population/community in educational institutions and government jobs. The reason behind this agitation was to refer the Marathas as members of agrarian community and not an upper caste. This demand for reservation was supported and upheld by the former chief ministers of Maharashtra that is Sharad Pawar and Vilasrao Deshmukh in the years 2008 and 2009. In between 2009 to 2014 this demand for reservation was supported by various political parties and organizations which resulted in an approval of the proposal for reservation of Marathas in government jobs and educational institutions by the then government which was headed by Prithviraj Chauhan.
Further on November 14, 2014 the Bombay High Court ordered a stay on the decision of the previous Democratic Front government for providing a provision of 16 per cent reservations to Marathas in government works and educational institutes. To this the Bharatiya Janata Party & Shiv Sena who were the then ruling government decided to move to the Supreme Court on November 15, 2014. It was on December 18, 2014 when the Supreme Court rejected to divest the Bombay High Court’s interim order staying reservation for Maratha Samaj in municipal service in Maharashtra. On January 6, 2015 the Government decided to tender supplementary evidence in the Bombay High Court for auxiliary reservations to Marathas. This was continued by the first Maratha Kranti morcha which was held in Aurangabad on August 9, 2016. Further on December 5, 2016 the Maharashtra government filed an affidavit to rationalize the reservation for Marathas as lawful and that it did not encroach upon constitutional provisions.
On December 14, 2016 a Maratha morcha was held in Nagpur when the winter sitting of Maharashtra legislature was in progress. Then on June 2017 the Maharashtra government constituted the State Backward Class Commission to study the social, financial and educational status of the Maratha community. On August 9, 2017 there was a gigantic Maratha morcha which was held in Mumbai. Further in July, 2018 the Maratha reservations issue was discussed and was withheld in the monsoon session of Maharashtra legislature in Nagpur. In July 17, 2018 the Maratha associations met in Pandharpur where they decided not to allow CM Devendra Fadnavis to hold puja of Lord Vitthal Rukmini on Ashadi Ekadashi. To this the CM cancelled his trip to Pandharpur, stating that his government supported request for reservation to Maratha but ball in court on July 23, 2018.
On November 15, 2018 the commission acquiesced its statement to the Maharashtra government. On which the Maharashtra legislature passed a bill offering 16% reservation in education and government jobs for Maratha community, which was declared as a socially and educationally backward class by the government on November 30, 2018. Further on December 3, 2018 a group of petitions were instituted in the Bombay High Court challenging the quota decision, which was termed as a violative of the Supreme Court orders which says that reservation in any state should not exceed over 50%.
On December 5, 2018 the Bombay High Court repudiated to grant interim stay on the quota decision but sent petitions for final hearing. Further on January 18, 2019 the Maharashtra government filed an affidavit, upending its decision to allow reservation to the Maratha community, and says it was meant to assuage the “socially and economically” backward class. On February 6, 2019 a division bench of Justices Ranjit More and Bharati Dangre started the final hearing into all petitions relating to the Maratha reservation issue.
On March 26, 2019 the High Court of Bombay settled the hearing arguments in the petitions and reserved its judgment. To which further on June 24, 2019 the High Court said that it would pronounce its verdict on the petitions on June 27. Now on June 27, 2019 the High Court while announcing its verdict upended the constitutional validity of reservation for the Maratha community, but further asked the government to reduce it from 16% to 12 to 13%, as suggested by the State Backward Classes Commission. In July 2019 some appeals were filed before the Supreme Court of India against the High Court’s verdict.
It was on September 9, 2020 when the Supreme Court referred the case to larger bench on whether State had power to declare a class socially and economically backward or not. Further on March 26, 2021 a Five judges’ bench at Supreme Court reserved its judgment after hearing it for 10 consecutive days. Which further resulted in the release of the verdict on May 5, 2021 when the Supreme Court held Maratha reservation unconstitutional and stroked down the law.
The Need for Reservation
The petition for a quota for Marathas is a long-standing one and apparently goes back as far as at least the 1980s. But the movement grew critical mass in the last few years. It was in 2017 that the then-BJP led Maharashtra government had set up a State Backward Class Commission to study the societal, economic and educational status of the Maratha community. The board, led by former judge MG Gaikwad, found that the Maratha community was academically and communally regressive and had insufficient representation in state government amenities. The Gaikwad committee found that under 7% of Marathas, who apparently make up 32% of Maharashtra’s population, were college graduates while 37% lived below the dearth line. A further 71% were found to be landless or borderline farmers. Based on the panel’s commendations, the Maharashtra Assembly passed a bill which granted 16% reservation in edification and government jobs to the Maratha community.
The Providence of the Quota
The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, witnessed a number of turns till it was held to be unlawful by the Supreme Court in its May 5 judgment this year. The first contest to the allocation was filed in the Bombay High Court right after the state government passed the legislation. Petitioners alleged that the quota desecrated the Supreme Court order in the Indira Sawhney case in 1992 that had ruled that reservation in any state must not exceed the 50% mark. In December 2018, the Bombay High Court rejected to put an interim stay on the quota law even as it was hearing the case. Ultimately, in its judgment in June 2019, the High Court sustained the Maratha quota but asked the state government to reduce it from 16% to 12-13%, which was also what was endorsed by the State Backward Class Commission. On the question of rupturing of the 50% mark, the High Court held that the upper limit levied by the Supreme Court could be surpassed in exceptional conditions.
Total Quotas Effective in Maharashtra
Before the Maratha quota Act, Maharashtra had 19% reservation for Scheduled Castes and Scheduled Tribes and an additional 27% reservation for backward classes. Reports proposed that, along with quotas for some other groups, the reservation for Marathas took the major of quotas in the state to above 60% despite the Bombay High Court’s verdict to trim the 16% that was assigned in the original 2018 legislation to 12% in edification and 13% in jobs.
What does the Apex Court say?
The Bombay High Court had observed while keeping the Maratha quota that the 50%-mark could be surpassed under extraordinary circumstances, but the Constitutional Bench of the Supreme court sought to vary on that appraisal. It said that “no odd circumstances were made out in conceding discrete reservation of Maratha community by exceeding the 50% ceiling limit”. It further held that the quota law “clearly encroaches upon Article 14 and 16 of the Constitution, which makes the enactment ultra vires”. Furthermore, the Supreme Court also rejected to accept the Gaikwad panel conclusions that the Marathas were communally and educationally regressive, saying that “the data collected and tabled by the Commission as noted in the report clearly proves that Marathas are not communally and academically retrograde class”. It distinguished that the Marathas were a “leading forward class and are in the majority of national life”.
Other States with additional reservation
Intelligences say that at least three other states including Tamil Nadu, Haryana and Chhattisgarh have announced quotas that breach the total 50% ceiling while some others, including Rajasthan, Gujarat, Karnataka and Jharkhand have asked the Supreme Court to increase the quota ceiling limit. In the case of Tamil Nadu, where total reservation has reached 69%, is interesting. After the state had breached the 50% mark for reservations, the then Chief Minister J Jayalalithaa had asked the Centre to amend the Constitution to protect the quotas granted by it. The state government brought in a legislation cementing the quota and ministers and politicians from the state then went to New Delhi with the demand, which was eventually met, that the Act should be placed within the Ninth Schedule of the Constitution. According to Article 31B of the Constitution, the Ninth Schedule is protected from judicial scrutiny and there is no scope for its provisions to “be deemed to be void, or ever to have become void”.
Supreme Court’s verdict on the Maratha Quota
A five-judge Supreme Court Constitution Bench unanimously declared illegal a Maharashtra statute that offers reservation advantages to the Maratha community, raising the quota ceiling in the state to more than 50%. The Bench, led by Justice Ashok Bhushan, determined that there were no “exceptional circumstances” or “special condition” in Maharashtra that compelled the Maharashtra government to exceed the 50% ceiling limit in order to provide quota advantages to the Maratha population. The Supreme Court overturned the Bombay High Court’s decision validating the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018 and knocked down the conclusions of the Justice N.G. Gaikwad Commission, which led to the adoption of the Maratha quota law.
In June 2019, the High Court lowered the amount of quota for Marathas from the Gaikwad Commission’s proposed 16 percent to 12 percent in education and 13 percent in employment. Even the lower percentages of reserve given by the High Court were found to be illegal by the Supreme Court. In fact, the Supreme Court ruled that a separate reservation for the Maratha group is in violation of Articles 14 (equality) and 21 (freedom of expression) (due process of law). Most crucially, the Supreme Court declined to revisit its Indira Sawhney decision from 1992, which set the reserve level at 50%.
“We don’t see why the Indira Sawhney decision should be revisited or referred to a bigger court. At least four Constitutional Courts have affirmed the ruling “Justice Ashok Bhushan read from his lead judgement on the Maratha quota law’s constitutionality.
In 1992, a nine-judge bench of the Supreme Court drew the “Lakshman rekha,” which established a 50 percent reservation in jobs and education, except in “exceptional situations.” Several states, like Maharashtra and Tamil Nadu, have crossed the Rubicon and approved legislation allowing reservation shooting at a rate of more than 60%. The five-judge bench concluded that the issue of reservation overflowing over the 50% ceiling should not be limited to Maharashtra. The Court has broadened the scope of the case by adding additional States as parties and invited them to express their views on whether reservation should be kept within the 50 percent limit or not. The Indira Sawhney decision stated categorically that “50 percent shall be the rule, with the exception of certain exceptional and extraordinary circumstances for bringing people from far-flung and remote areas into the mainstream,” and that “the 50 percent rule can be relaxed only in certain exceptional and extraordinary situations for bringing people from far-flung and remote areas into the mainstream.”
Appointments made under the Maratha quota following the Bombay High Court’s endorsement of the State statute would be upheld, but they would not be eligible for any further perks, according to Justice Bhushan. Students who have already been admitted under the Maratha quota law will be allowed to continue. Students accepted into postgraduate programmes would be unaffected because they were not granted a reservation. Justice S. Ravindra Bhat took a “different opinion” from Justices Bhushan and S. Abdul Nazeer in the second portion of the ruling on the constitutionality of the 102nd Constitution Amendment. The Court considered whether the Constitution (One Hundred-Second Amendment) Act of 2018, which established the National Commission for Backward Classes, infringed on state legislatures’ ability to help socially and educationally disadvantaged populations under their jurisdiction. Articles 338B and 342A of the Constitution were added by the Constitution Amendment Act. The newly created National Commission for Backward Classes is addressed under Article 338B. Article 342A gives the President the authority to designate which communities in a state are socially and educationally disadvantaged. It states that the inclusion of a community on the Central List for socially and economically disadvantaged groups for the purpose of granting reservation benefits is up to the Parliament. The court had looked at whether Article 342A took away the jurisdiction of state legislatures to put their backward groups in the State Lists. Only the President, according to Justice Bhat, could modify the Central List of socially and economically backward groups based on data provided by different sources, including the National Commission for Backward Classes. Only “suggestions” might be made by the states. The President was the sole person in charge of the “ultimate exercise” of incorporating castes and communities. However, Justices Bhushan and Nazeer ruled that Parliament did not intend to deprive states of their ability to define their backward classes. Nonetheless, they maintained the Amendment Act’s legality.
Whether the State has Rights?
The other three questions relay unswervingly to the powers of the states when it comes to giving reservations not just above 50% but also inside this limit. One of the questions which the court outlined was whether the 102nd amendment to the Constitution passed by Parliament in August 2018 destitute state legislatures of the powers to pass laws classifying socially and pedagogically backward classes and giving them reservations. The 102nd amendment introduced some provisions in the Constitution, two of which are of momentous importance to the contemporary case.
Through Article 342 A (1), the President, after consultation with the governor in case of a state, can specify through a public notification the socially and educationally backward classes of that state. Article 342 A (2) said Parliament can include or exclude from the central list of backward classes groups that are included through the presidential notification under Article 342 A (1).
When the 102nd constitution amendment bill was nominated in Parliament in 2017, the Centre confronted firm resistance in the Rajya Sabha, which sent the matter to a select committee. At that time, Prime Minister Narendra Modi accused the Opposition of contradicting OBCs their rights since the law anticipated to create a National Commission of Backward Classes with constitutional status. The select committee report endorsed that no changes were obligatory to the amendment bill. But it is vital to note that some of the trepidations raised when the law was passed about reduction of states’ rights have come back to the limelight in the Maratha quota case. Lettering in the Forward Press, former Madras High Court judge AK Rajan had labelled the possible aftermaths of the clauses when read in entirety. The former judge said the amendment takes away the power of the state to identify socially and educationally backward classes and puts such power completely in the Centre’s arena.
In crux, this has become the central question in the Maratha case, whether ensuing the amendments, the state legislatures have the powers to declare a group as socially and educationally backward or if only Parliament has such power. As a follow up, the Supreme Court also questioned if the amendment exaggerated the federal structure of the country.
Challenges before the Court
The court was dealing with a task to the Maharashtra State Reservation for Socially and Educationally Backward Classes Act (SEBC Act) of 2018. The law professed Marathas to be a ‘socially and educationally backward class’ and providing them with reservations of 16 per cent in edifying institutions, including private institutions, and in public services. The law was grounded on a report acquiesced by the Maharashtra State Backward Class Commission under the chairmanship of Justice N.G. Gaikwad. Whereas the Bombay High Court sustained the law in June 2019, it abridged the quantum of the quota to 12 per cent in education and 13 per cent in jobs, as suggested by the commission. The Maharashtra law also augmented the total reservation to over 50 per cent. According to the Bombay High Court ruling, the final reservation after totalling the 12 and 13 per cent quota amplified the total reservation in educational institutions to 64 per cent and government jobs to 65 per cent in the state.
Political views on Supreme Court’s Verdict
Chief Minister Uddhav Thackeray while labelling the Supreme Court’s verdict regarding the striking down of the Maharashtra law providing reservation to Marathas in educational institutes and government jobs as unfortunate, said that the lawful battle for the reservations to the Maratha community will continue till there is “triumph”. In a speech after the Supreme court judgement, Thackeray said, “With folded hands, we request the prime minister and the president to take an immediate decision on Maratha quota.” The chief minister said he assumes the Centre to show the same promptness on the Maratha quota issue as it did in bringing verdicts on issues like the Shah Bano case and repeal of Article 370 for which the Constitution was amended. CM Thackeray said BJP MP Chhatrapati Sambhajiraje has been looking for Prime Minister Narendra Modi’s appointment over the Maratha quota issue for the last one year but to no gain. The Supreme Court has scuffled a decision taken by all parties in the state legislature, he said. The lawful battle for Maratha quota will continue till there is success, Thackeray said.
Past in the day, the Supreme Court labelled the state law on Maratha quota as “unconstitutional” and held there were no special situations to fissure the 50 per cent reservation limit set by the 1992 Mandal judgement. The ruling came on a bunch of pleas challenging the Bombay High Court verdict which had supported the grant of reservation to Marathas in admissions and government jobs in the state. 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 was decreed to grant reservation to people of the Maratha community in the state in jobs and admissions.
The Bombay High Court, while upholding the law in June 2019, had held that 16 per cent reservation was not admissible and the quota should not exceed 12 per cent in employment and 13 per cent in admissions. In the meantime, the BJP later held responsible the Shiv Sena-led Maharashtra government for “waning” to convince the Supreme Court over the matter of reservation for the Maratha community in jobs and edification. State BJP president Chandrakant Patil necessitated that the state government must call an all-party meeting and a special session of the Assembly to converse the matter. He said the previous Devendra Fadnavis-led state government had formulated the Backward Class Commission which suggested to consider the Maratha community as backward on three facades firstly social secondly economic, and lastly educational. The Fadnavis government then ratified the law (in 2018) giving reservation to the Maratha community in jobs and education, which was later confronted in the Bombay High Court. The contemporary Maha Vikas Aghadi government in Maharashtra (encompassing the Shiv Sena, NCP and Congress) has “completely failed the Maratha community”, Patil appealed.
 Zeeshan Shaikh, Explained: Marathas, quota demand, and community’s importance in state politics The Indian Express (2019), https://indianexpress.com/article/explained/marathas-quota-demand-and-communitys-import-in-state-politics-maratha-verdict-devendra-fadnavis-5803793/ (last visited Jun 27, 2021).
 Sonam Saigal, Maratha reservation: A timeline of events The Hindu (2021), https://www.thehindu.com/news/cities/mumbai/maratha-reservation-a-timeline-of-events/article34487593.ece (last visited Jun 27, 2021).
 News18.com, EXPLAINED: Why Maratha Quota Issue Refuses To Die Down Despite SC Order News18 (2021), https://www.news18.com/news/india/explained-why-maratha-quota-issue-refuses-to-die-down-despite-sc-order-3823643.html (last visited Jun 27, 2021).
 Maratha Quota Case: SC Declares Reservation Over 50% as Unconstitutional, The Wire, https://thewire.in/law/maratha-quota-case-sc-declares-reservation-over-50-as-unconstitutional (last visited Jun 27, 2021).
Author: Mr. Aryan Rawal, Symbiosis Law School, Nagpur
Editor: Kanishka Vaish, Senior Editor, LexLife India.