supreme court

On May 5 Supreme Court quashed Maharashtra State Reservation for Socially and Educationally Backward Classes Act (SEBC Act) of 2018, providing reservation to Maratha community in public services and educational institutions. This judgement is significant in multiple ways thanks to the increasing lobbying power of reservation politics, both at centre and state. After the Indira Sawhney verdict of 1992, this was the first serious effort from the apex judiciary to thoroughly revisit the Socially and Educationally Backward Classes (SEBC) reservation to realign reservation in compliance of changing needs. SEBC reservation guaranteed in article 15(4) and 16(4) was re-examined by the court. Along with this, court made disappointing judgement with regards to SEBC identification under article 342A (1) while upholding the constitutionality of 102th constitutional amendment of 2018 which provides for conferring constitutional status to National Commission for Backward Classes under Article 338 B.

Current status of reservation

Article 340 deals with the need to, inter alia, identify those “socially and educationally backward classes”, understand the conditions of their backwardness, and make recommendations to remove the difficulties they face while Article 342 requires president to appoint commissions to study the conditions of SEBC. After the enforcement of the Constitution, the president of India appointed the Kaka Kalekar Commission, the first National Commission for Backward Classes, to investigate the conditions of socially and educationally backward classes and submitted the report in 1955.

Second National Commission for Backward classes, popularly known as Mandal Commission after its chairman B.P Mandal, was established by Morarji Desai government. Although it submitted report in 1983 it continued to gather dust until V.P Singh government decided to implement the report in 1990. It recommended, inter alia, 27 percentage reservation to Backward Classes in jobs and education so far enjoyed only by SC/ST communities. This incited bout of violence over reservation across the country.

When Narasimha Rao swept into power in 1991, in order to mollify caste groups protesting against the Mandal implementation brought forth 10 percentage reservation for communities in forward class, hitherto not enjoying any reservation benefits, on comparative economic deprivation. Along with it, Rao government introduced creamy layer criteria for SEBC reservation.

In the famous Indira Sawhney case, nine judge constitutional bench of Supreme Court comprehensively examined all aspects of Backward Class reservation in practice. While striking down proposed 10 percentage reservation for economically disadvantaged sections in forward castes, Supreme Court endorsed 27 percentage reservation for SEBC. In this judgement Supreme Court put forth two decisive guidelines for SEBC reservation:

1) Upper cap of reservation under Article 15(4) and article 16 (4) was pegged at 50 percentage. (Article 15(4) capacitates the state to create special arrangements for promoting the interests and welfare of socially and educationally backward classes of the society such as SC and STs. Article 16(4) states that nothing in this article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state.)

Following this SEBC reservation quota could not be in excess of 27 percentage because SC and ST already class enjoy reservation at 15 percentage and 7.5 percentage respectively. Only in exceptional cases, reservation ceiling is allowed to breach the 50 percentage cap. Tamilnadu has in total 69 percentage reservation and to validate this anomaly seventy sixth constitutional amendment of 1994 was inserted in 9th schedule, which protects the enlisted legislations from judicial review due to the fact it violates the constitutional principles of equality under Article 14 and 21.

2) Only non-creamy layer sections among SEBC can claim reservation. This was brought supposedly to diminish intra-class inequalities.

After this judgement, various state governments have pressed for relaxation of 50 percentage cap pandering to political pressure. Since, the judiciary has held the ground firmly and foiled all endeavours to create ‘a modern caste society’ based on constitutional provisions ensuring affirmative actions.

When central government decided to allot 10 percentage economic reservation for forward classes in 2019 it indeed stirred hornet’s nest. The Constitution (103rd Amendment) Act 2019 passed by Parliament enables the State (i.e., both the Central and State Governments) to provide reservation to the Economically Weaker Sections (EWS) of the society. Whether or not to provide reservation to the EWS of the society for appointment in State Government jobs and admission to State Government educational institutions, as per provisions of the newly inserted Articles 15(6) and 16(6) of the Constitution, is to be decided by the State Government.

Few doubts might have reared here; is EWS reservation under 50 percentage cap? Does this new amendment allows the reservation to be hiked beyond 50 percentage? Reservations under 15(4) and 16 (4) are fundamentally different from reservation under 15 (6) and 16(6). SC, ST and SEBC reservation is enshrined in constitution right from the promulgation of constitution under Articles of 15(4) and 16(4). Indira Sawhney judgement and 50 percentage cap is applicable only in this set of reservation. EWS reservation is newly added in constitution as per 103rd constitutional amendment act and placed as Articles 15 (6) and 16 (6). Whether this reservation is legitimate nor does not run contrary to equality principles of constitution is to be decided by Supreme Court as the issue is currently under sub judice. Currently, in practice, many states like Kerala, West Bengal and Maharashtra have earmarked more than 60 percentage for reservation.

The government reasons it out by claiming that while 49.5 per cent existing quota is caste based, provision for EWS will be based on economic stature of the applicant. It will be carved out of the 50.50 per cent merit quota. So it would not fall in the category of the quota limit defined by the apex court and hence it will withstand any legal scrutiny.

To sum up, As per existing instructions, reservation is provided to Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs) at the rate of 15%, 7.5% and 27%, respectively, in case of direct recruitment on all India basis by open competition. In direct recruitment on all India basis, other than by open competition, the percentage fixed is 16.66% for SCs, 7.5% for STs and 25.84% for OBCs. All under article 15(4)and 16 (4). Constitutional amendment act of 103 provided for additional 10 percentage reservation for Economically weaker Sections among forward communities under newly inserted articles of 15(6) and 16(6).

History of Maratha reservation

Marathas are predominantly Hindu community mostly inhabiting in Maharashtra and constitutes approximately 40 percentage of total state population. Historically the community was the rulers and land owners in Deccan areas and socially belonged to middle class in caste strata.  This historical privilege and access to economic resources were cited by multiple commissions to dismiss reservation demands of the community.

First National Backward Commission Kaka Kalekar in 1955, B.D Deshmukh commission in 1964 and Maharashtra Other Backward Commission in 2008 favoured non-inclusion of Marathas in SEBC list.

Finally, in 2018, BJP state government under Devendra Fadnavis brought law to extend reservation benefits to the community based upon Gaikwad Commission report. Maharashtra State Reservation for Socially and Educationally Backward Classes Act (SEBC Act) of 2018 declared Marathas to be ‘socially and educationally backward’ and 16 percentage quota was earmarked in public services and educational institutions. Maharashtra High Court ratified the bill but reduced the quantum of quota in educational institutions and public jobs to 12 percentage and 13 percentage respectively. Practically, total reserved quota in Maharashtra rose to 65 Percentage defiling Supreme Court mandate to limit reservation within 50 percentage cap.

Major takeaways from Supreme Court verdict

Supreme Court nullified Maharashtra State Reservation for Socially and Educationally Backward Classes Act (SEBC Act) of 2018 on the ground it breaches 50 percentage ‘Lakshman Rekha’ and the case does not warrant the invocation of ‘exceptional case rule’ where reservation beyond 50 percentage is permitted.  While examining the issue Supreme Court has exhaustively reviewed SEBC reservation along with changes introduced through constitutional amendment act of 102 of 2018 which conferred constitutional status to National Commission for Backward Classes (NCBC).

Judges were unanimous in reiterating the relevance of Indira Sawhney judgement and didn’t see any merit in outcries to change 50 percentage upper cap of reservation. It further mentioned that Maharashtra SEBC Act is ultra vires as it vituperates equality principles of constitution under Articles of 14 and 15. In order to ameliorate caste disabilities other affirmative action’s besides reservation have to be exercised, it said.

Constitutional amendment Act of 102 and Article 324 A

The judgement validated 102 constitutional amendment that gives constitutional status to NCBC and made substantial modification in SEBC national identification. Article 338 B was inserted in the constitution for this purpose. This article deals with the structure, duties and power of the commission. Article 342 A speaks about the power of Indian President to notify a class as SEBC and the power of parliament to alter central SEBC list.

The court ruled that, henceforth, there will be only single list of SCBC for both centre and state to be notified by president. States can only make recommendation for inclusion and exclusion while final authority will be president and subsequent changes are to be made by Parliament only. “The states’ power to make reservations, in favour of particular communities or castes, the quantum of reservations, the nature of benefits and the kind of reservations, and all other matters falling within the ambit of Articles 15 and 16 – except with respect to identification of SEBCs, remains undisturbed,” the judgement said.

Writing the majority judgement on this aspect, Justice Bhat, said, “By introduction of Articles 366 (26C) and 342A through the 102nd Constitution, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution.”

The states can, through their existing mechanisms, or even statutory commissions, only make suggestions to the President or the Commission, for “inclusion, exclusion or modification of castes or communities” in the SEBC list, Justice Bhat said.

What will happen when states lose power for identification of SEBC?

By endorsing 102 constitutional amendment act, states have been virtually robbed of their right to identify SEB classes. Instead, the centre has been vested with complete power in this regard. This raises heckles because the overriding powers of centre poses threat to federal structure as states are deemed more fit to identify the beneficiaries of reservation. Alarmingly, this rule puts SEBC reservation under the sole discretion of centre and opens likelihood for obnoxious exploitation to match its political designs.

Supreme Court has demanded to issue complete SEBC list as soon possible under Article 142 that gives extensive power to the court to take actions for complete justice. After its publication by President only Parliament can change the list. State governments have been historically more responsive to the demands of lower castes and tend to be more accommodative of their interests. Decentralized policies have worked well in the case of reservation and thus this change is met with disdain.

The case had presented the apex court an opportunity to implement creamy layer criteria in ST, ST reservation and hopefully diminish intra- community inequalities. Much to the disappointment, Court refrained from such a revolutionary move citing constitutional provisions of 15 and 16.

It is apprehended that the new version of the National Commission for Backward Classes is unlikely to provide credible and effective social justice architecture because the recommendation of new NCBC is not binding on the government.    By retaining the old generic name of NCBC and delinking the body from its soul (Article 340), the government set the stage for the whole scheme of special protections under the Constitution in danger. Moreover, Article 338B (5) is silent on the SC mandate on periodic revision of the backward class list in consultation with the NCBC.

Grace Mubashir is a Research Scholar, JMI


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