Decoding The Maratha Reservation Judgement – A Critical Analysis

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The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, was struck down by a Constitution Bench of the Supreme Court on May 5, 2021. The aforementioned act had provided the Maratha group with educational and public job reservations (as a result, the total reservation in Maharashtra for the Maratha Community had gone over 50 percent , which was the subject of challenge).

Issues:

1. Is it necessary for the Indira Sawhney decision to be reconsidered by a larger bench?

2.Is there any evidence in the Gaikwad Commission Report that a case of extraordinary circumstances exists for the grant of a separate reservation to the Maratha community that exceeds the 50% limit?

3. Whether the Maharashtra SEBC Act, 2018, which grants distinct reservation for the Maratha Community by surpassing the 50% ceiling, qualifies as exceptional circumstances under the Indra Sawhney decision?

4. Is Article 342 A read with Article 366[26(C )] of the Indian Constitution limiting states’ ability to regulate in connection to backward classes?

5. Whether Article 342A of the Constitution deprives states of their jurisdiction to regulate or categorise “any backward class of citizens” and thus has an impact on India’s federal policy and structure?

Issue wise analysis:

1st Issue:

On November 16, 1992, the Hon. Supreme Court decided Indra Sawhney & Others v Union of India[1], which was a landmark case. The ruling established the limitations of government power, defended the 50% quota ceiling, reinforced the concept of social backwardness, and mandated 11 measures to determine backwardness. It also coined terms like “creamy layer” to describe qualitative exclusion.

During the course of the procedures in this case, the lawyers established a number of reasons why they believe the judgement should be reconsidered in front of a larger bench. The following are the reasons:

1st Reason

Only three judges supported a 50% ceiling, while the others felt it could be exceeded.

When a large number of opinions are expressed, the Hon. Court in Rajnarain Singh v The Chairman[2], Patna Administration Committee discussed how to cull the majority opinion. It was established that in a situation where there are various opinions, the Court’s ruling is the most frequent measure of agreement. The greatest general measure of agreement that arises out of this is indicated in paragraphs 809 and 810 of the Indira Sawhney Judgement; 243 (justice Pandian), 323 (justice Thommen), 384 (justice Singh), 619 (justice Sahai), and 552 (justice Sawant). The following are the points made in the paragraphs:

“809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%.

810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”

As a result, the Indira Sawhney decision makes it very apparent that a 50 percent ceiling must be enforced, and that it can only be exceeded in extraordinary circumstances. All other utterances are the judges’ personal opinions, which cannot be regarded as obligatory.

2nd Reason

Indira Sawhney judgement is based on Article 16(4), it’s ratio cannot be applied on Article 15(4).

Article 16(4)[3] of the Constitution states the following:-

4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

Article 15(4)[4]  of the Constitution states the following:-

Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

In the Indira Sawhney decision, Justice Jeevan Reddy noted that while M.R Balaji v State of Mysore[5] was not a case arising under Article 16(4), what was said regarding Article 15(4) came to be considered as equally acceptable and valid for the purposes of Article 16(4). (4). The following is taken from paragraph 757 of the Judgement:

“757. Though Balaji was not a case arising under Article 16(4), what it said about Article 15(4)came to be accepted as equally good and valid for the purpose of Article 16(4). The formulations enunciated with respect to Article 15(4) were, without question, applied and adopted in cases arising under Article 16(4). It is, therefore, necessary to notice precisely the formulations in Balaji relevant in this behalf. …”

Subclause 4 of Article 16 is a means of accomplishing the purpose of equality, according to paragraph 808 of the judgement, and it is nothing more than the reintroduction of the concept of equality embodied in Article 14. Similarly, subclause 4 of Article 15 is nothing more than a reaffirmation of the equality principles stated in Article 14.

Applying the observation made in the Balaji case, it is obvious that the observation made about Article 16(4) can be extended to Article 15(4) and is not a sufficient grounds to reexamine the judgement.

3rd Reason

The Indira Sawhney decision did not assess the impact of directive principles of state policy such as Article 39(b)(c) and Article 40.

The Directive Principles of State Policy entrenched in Part IV of the Indian Constitution are essential for the country’s government. When enacting law, the government must take the required procedures to achieve the goals outlined in Part IV of the Constitution. In the landmark case of Kesavnanda Bharati v State of Kerala[6], the Hon. Court discussed the importance of directive principles and how they, along with fundamental rights, make up the Constitution’s conscience. The following is stated in paragraph 712 of the Judgement:

“712. No one can deny the importance of the Directive Principles. The Fundamental Rights and the Directive Principles constitute the ‘conscience’ of our Constitution. The purpose of the Fundamental Rights is to create an egalitarian society, to free all citizens from coercion or restriction by society and to make liberty available for all. The purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution the Constitution seeks to fulfil the basic needs of the common man and to change the structure of the society. It aims at making the Indian masses free in the positive sense.”

Article 38 of the Directive Principles of State Policy requires the state to try to enhance the welfare of the people by establishing and protecting a social order in which social, economic, and political justice shape all aspects of national life as effectively as possible. Articles 15(4) and 16(4) of the Constitution are only stages toward promoting and implementing policy established under Article 38 of the Constitution.

Contrary to popular belief, the Indira Sawhney decision took into account Articles 38 and 46 of Part IV of the Constitution. The following is taken from paragraph 647 of the judgement:

647. The other provisions of the Constitution having a bearing on Article 16 are Articles 38, 46 and the set of articles in Part XVI. Clause (1) of Article 38 obligates the State to “strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”

As a result, the accusation that the judgement ignores Article 16 is completely false. Articles 16(4) and 15(4) discuss ways to ensure equality of status and opportunity, which corresponds to Article 39 of Part IV of the Constitution. As a result, this premise has no merit, and the judgement does not need to be reconsidered on this basis.

4th Reason

It was decided in the instance of St. Stephen’s College v. University of Delhi[7], that minority institutions should be encouraged to enrol students from their community, but that the intake should not exceed 50%. The 50 percent cap was only a recognition of the premise established in the Indira Sawhney decision. The 50 percent cap was overturned in the T.M.A Pai Foundation case[8], although this decision was based on the interpretation of Articles 29 and 30 of the Indian Constitution.

Minorities have a Fundamental Right under Article 30 of the Constitution to create and control educational establishments. As recognised by the Constitution, the right to minorities is a unique and separate right. The 93rdConstitutional Amendment Act of 2005, which adds sub-paragraph (5) to Article 15, excludes the minority educational institutions mentioned in Article 30 clause (1). Article 15 subclause (5) is a clear constitutional signal that, in terms of minority admission rights to educational institutions, the minority educational institutions mentioned in clause (1) of Article 30 are fully excluded. The 93rd Constitutional Amendment finds clear epoch in what this Court established in the T.M.A. Pai foundation case.

Thus, it is apparent that Article 30, on which the T.M.A Pai decision was founded, had no relevance to Articles 15 and 16, which were the bulwarks of the Indira Sawhney decision, based on the 93rd amendment. The setting aside of the 50 percent cap in the St. Stephen case was done with the goal of giving effect to Article 30 and had nothing to do with the Indira Sawhney decision’s 50 percent reservation ceiling. As a result, the T.M.A Pai decision had no influence on the Indira Sawhney decision, and there was no need to review the decision on the basis of that decision.

5th Reason

Parts of the Indira Sawhney decision have been undone by constitutional amendments 77 and 81. Subclause 4A was incorporated into Article 16 of the Constitution by the 77th Constitutional Amendment, which was enacted in 1995. Reservation in promotion for Scheduled Castes and Scheduled Tribes is now permissible as a result of this addition. As a result, the Indira Sawhney ruling on the above-mentioned provisions is no longer valid. However, there is insufficient justification for reversing the entire decision.

In the year 2000, the 81st Amendment was approved, which added subclause 4B to Article 16[9] of the Constitution. The following is stated in the sub clause:

16(4B). Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.”

The 50 percent ceiling has obtained constitutional protection, and so the amendment, rather than sidelining the Indira Sawhney judgement, has recognised the 50 percent ceiling, which was the core concept of the entire judgement and hence cannot be a consideration for reviewing the judgement.

6th Reason

The Indira Sawhney decision mentions several unusual circumstances at paragraph 810. The following is stated in the document:

“810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being put of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”

From a cursory reading of the preceding paragraph, it is evident that there are two criteria that must be met in order for a situation to be classed as remarkable. The geographical test of far-flung locations, which can be exhaustive in some situations and is not broadly applicable in modern times. The second condition, which concerns being a part of the mainstream, is the most significant.

Although the circumstances listed in paragraph 809 are not exhaustive, they do assist in determining the true extraordinary circumstances and are not a basis for reconsidering such a significant decision.

The Hon’ble Court does not believe the judgement warrants reconsideration since all of the premises on which the entire revisiting judgement argument was built are not sufficient to the Hon’ble Court.

2nd Issue:

In the Indira Sawhney decision, paragraphs 809 and 810 discuss the existence of exceptional circumstances that justify exceeding the 50% limit. The following is what they say:

“809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%.”

810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”

It is reasonably evident from a cursory reading of paragraph 810 that the judgement has imposed two tests. They are:

– The geographical test of living in remote locations

– The social test of being excluded from society’s mainstream .

In the current situation, the Maratha community is evenly distributed across Maharashtra, which is well-connected to the rest of the country. As a result, the test of Marathas stuck in far-flung locations is not being met.

In its report, the Gaikwad Commission discusses the representation of the Maratha minority in the state’s civil service. It specifies:

“The proportion of Maratha class employees against the filled post as on 31st August 2018 is 18.95% in Grade A, 15.22% in Grade B, 19.56% in Grade C and 18.23% in Grade D”. Apart from this, there are a large number of Maratha MLAs, MPs, Ministers, and former Chief Ministers.

As a result, the Maratha minority cannot be said to be isolated from mainstream society; rather, they have complete control over the Maharashtra narrative.

Because both of the tests set forth in the judgement have yet to be met, there appears to be no compelling reason to exceed the 50% reservation limit.

3rd Issue:

The SEBC Act, 2018, proclaims the Maratha community to be socially and educationally backward, and Section 4(1) of the Act grants reservation in educational institutions and appointment to public service jobs.

Various committees have been established in the past to assess the character of the Maratha community, and all of them, including Kaka Kalekar, Bapat, Khatri, and the Mandal Commission, unanimously concur on one point: the Marathas are not a backward class.

The Maharashtra SEBC Act is entirely based on the findings of the Gaikwad Commission report[10], which was released on November 15, 2018. The following is taken from paragraph 9 of the report:

  • The Maratha Community is socially and educationally backward and a backward class for the purposes of Article 15(4) and (5) and Article 16(4), on the basis of quantifiable data showing backwardness, inadequacy in representation by the said Commission;
  • Having regard to the exceptional circumstances and extraordinary situation generated on declaring Maratha as socially and educationally backward and their consequential entitlement to the reservations benefits and also having regard to the backward class communities already included in the OBC list, if abruptly asked to share their well established entitlement of reservation with a 30% of Maratha citizenry, it would be a catastrophic scenario creating an extraordinary situation and exceptional circumstances, which if not swiftly and judiciously addressed, may lead to unwarranted repercussions in the well harmonious co-existence in the State, it is expedient to relax for the percentage of reservation by exceeding the limit of 50%, for advancement of them, without disturbing the existing fifty-two percent reservation currently applicable in the State, only for those who are not in creamy layer;
  • It is expedient to provide for 16 percent of reservation to such category;
  • It is expedient to make special provision, by law, or the advancement of any Socially and Educationally Backward Classes of Citizens, in so far as admission to educational institutions, other than the minority educational institutions, is concerned but such special provisions shall not include the reservation of seats for election to the Village Panchayat Samitis, Zilla Parishads, Municipal Councils, Municipal Corporations, etc;
  • It is expedient to provide for reservation to such classes in admissions to educational institutions including private educational institutions whether aided or unaided by the State, other than minority educational institutions referred to in clause (1) of Article 30 of the Constitution; and in appointments in public services and posts under the State, excluding reservations in favour of Scheduled Tribes candidates in the Scheduled Areas of the State under the Fifth Schedule to the Constitution of India, as per the notification issued on the 9th June 2014 in this behalf;
  • (f) By providing reservation to the Maratha Community, the efficiency in administration will not be affected, since the Government is not diluting the standard of educational qualification for direct recruitment for this classes and there will definitely be competition amongst them for such recruitment; and
  • (g) To enact a suitable law for the above purposes. In view of the above, the State Government is of the opinion that the persons belonging to such category below the Creamy layer need special help to advance further, in the contemporary period, so that they can move to a stage of equality with the advanced sections of the society, wherefrom they can proceed on their own.”

The State Government has fully implemented the Committee’s recommendations, and the Act is based on the Committee’s report, as can be seen from this paragraph.

However, because the commission report failed to demonstrate the existence of an extreme circumstance justifying a breach of the 50% ceiling, the Act, which is entirely based on the report, is deemed unsustainable.

Furthermore, in the case of M Nagaraj v. Union of India[11], the Hon. Court reaffirmed that the 50 percent reservation ceiling was set with the goal of preserving equality rather than creating a caste-based society. The following is stated in paragraphs 111 and 114 of the Judgement:

“111. The petitioners submitted that equality has been recognized to be a basic feature of our Constitution. To preserve equality, a balance was struck in Indra Sawhney so as to ensure that the basic structure of Articles 14, 15 and 16 remains intact and at the same time social upliftment, as envisaged by the Constitution, stood achieved. In order to balance and structure the equality, a ceiling limit on reservation was fixed at 50% of the cadre strength; reservation was confined to initial recruitment and was not extended to promotion…

114. In Indra Sawhney, the equality which was protected by the rule of 50%, was by balancing the rights of the general category vis-à-vis the rights of BCs en bloc consisting of OBCs, SCs and STs…”

There are no exceptional conditions that justify creating a separate reserve for the Maratha group beyond the 50% limit. The stated Act is extra vires because it contradicts Articles 14 and 16 of the Indian Constitution.

4th Issue:

Articles 338B and 342A were introduced into the Constitution by the 102nd Amendment, which got presidential approval and went into effect in August 2018. It also made certain amendments to Article 366.

The following are the parts of Article 342 A[12] that are open to interpretation:

  • (A) Socially and educationally backward classes. —

 (1)The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may.

(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Article 366 (26 C)[13]  which is also relevant is as under: –

366. Definitions. Unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—

[(26C) ―socially and educationally backward classes means such backward classes as are so deemed under article 342 A for the purposes of this Constitution;]

In the cases of Adams Express Company v. Commonwealth of Kentucky and United States v. Goldenberg, the Hon’ble Court declared that if the statute’s wording is clear, there is no need for interpretation because legislative intent is shown by apparent meaning. The primary source of legislative purpose is the wording employed in the statute itself. In the case of R.S. Nayak v. A.R. Antulay, it was also decided that the Court’s most basic duty is to give effect to the natural meaning of the words used in the provision if the statute’s words are clear and unambiguous.

The newly included Article 342A and Subsection 26(C)  are highly plain and unequivocal in this context, and it specifically specifies that the President has the ability to notify the SEBCs. Except to advise the Governor, who then advises the President, the state government has no role in the process. However, the final decision is left to the President’s discretion.

Furthermore, the word “means” is used to provide greater clarity to the definition, indicating that the definition is both restrictive and exhaustive.

As a result, there is no ambiguity in Article 342A’s phrasing. Article 342 A’s plain meaning is that the President, after consulting with the Governor of a State or Union Territory, may publish a public notification identifying socially and educationally disadvantaged groups. It is very apparent that the President can only issue one list of SEBCs, and Article 342A limits the state’s ability to designate SEBCs based on its wording.

5th Issue:

Article 342 A of the Constitution states the following :-

  • Socially and educationally backward classes. —
  • The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the socially and educationally backward classes which shall for the purposes of this Constitution be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be.
  • Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

It was stated that these provisions have an impact on the federal structure since they deprive the state of its ability to completely legislate in favour of SEBCs under List II’s Entry 25 and 41, as well as provide for SEBC reservations. Whether such modifications violate the Constitution’s essential structure or not, the courts have typically underlined that any change brought about by amendments, no matter how significant the impact, cannot be viewed as a violation of the basic structure.

In the case of Raghunath Ganpatrao, where the deletion of Articles 291 and 362 of the Constitution was regarded as a violation of the Constitution’s basic structure, the Hon. Court held that an amendment cannot be regarded as violative of the Constitution’s structure unless there is a change in the personality of the Constitution, either in its scheme, basic feature, or character. In the case of Maharao Sahib Shri Bhim Singhji v. Union of India, Hon Justice Krishna explained what type of alteration would be repugnant and violate the fundamental structure. She made the following observation:

“Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice.”

Using the parameters in the preceding cases, an oblique and peripheral change to state power would not be a violation of the basic structure unless it effectively divests the federal content of the constitution and deprives the states of their effective power to legislate or frame executive policies. Because nothing of the type is happening in this situation, it is reasonable to conclude that Article 342A, as incorporated by the 102nd Amendment, does not violate the Constitution’s basic structure.

Conclusion:

The Hon. Court has ruled on the following points after careful consideration:

• Indira Sawhney’s decision does not need to be reconsidered

• The Gaikwad Commission Report failed to demonstrate that there were exceptional circumstances justifying a breach of the 50% ceiling.

• According to the Indira Sawhney decision, the Maharashtra SEBC Act, 2018, does not fall under the category of extraordinary circumstances.

• The 102nd Amendment, with the addition of Article 342A and Article 366[26( C)], has limited states’ ability to legislate in relation to the poor.

• Article 342 A has no effect on the Constitution’s essential framework. 


[1] Indra Sawhney v. Union of India, (1992) Supp. (3) SCC 217 [2]

[2] Rajnarain Singh v. The Chairman, Patna, AIR 1954 SC 569

[3] Article 16(4) of the Constitution of India.

[4] Article 15(4) of the Constitution of India.

[5] M.R. Balaji v. State of Mysore, 54 AIR 1963 SC 649

[6] Kesavananda Bharti Sripadagalvaru & Ors. v. State of Kerala & Anr. (1973) 4 SCC 225

[7] St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558.

[8] T.M.A. Pai Foundation and others v. State of Karnataka and others, (2002) 8 SCC 481.

[9] Article 16 (4B) of the Constitution of India.

[10] Gaikwad Commission Report, November 14th, 2018.

[11] M. Nagaraj v. Union of India, (2006) 8 SCC 212.

[12] Article 342A of the Constitution of India.

[13] Article 366 (26 C) of the Constitution of India.

Author: Karan Irkhede, Indian Law Society’s Law College (ILS), Pune

Editor: Kanishka VaishSenior Editor, LexLife India.

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