[Authored by Ms. Sakshi Ajit Kale, an Advocate practicing at the High Court of Judicature at Bombay.]

While upholding the 102nd Constitutional Amendment of 2018 [1] the Supreme Court held that Article 342A and 366(26c) [2] inserted under the Amendment relate only to the backward classes under the Central List. But however, relying on the judgment of Indra Sawhney & Others v. Union of India [1992 Suppl. (3) SCC 217] which laid the rule of 50% reservation so as to maintain the balance under Article 14,15 and 16, the Bench observed that there do not exist any ‘exceptional and extraordinary circumstances' so as to provide reservation for the Marathas on the basis of grounds of "social and educational backwardness". It was argued on behalf of the Senior Counsels appearing for the Respondents that the judgment in the case of Indra Sawhney needs to be revisited because of its various flaws [3]. The Hon'ble Court in seriatim addressed the grounds -

While dealing with the contention that the judgment was not derived by the majority, the Court dealt with the 'method of culling out' [4] and cited the judgment given by this Hon’ble Court in Raj Narain Singh v. Chairman, Patna Administration Committee, Patna & Anr [5] which observed what is method of culling out for deciding the majority stating Opinion which embodies the greatest common measure of the agreement among the Bench is to be excepted as the decision of the Court. Applying and analyzing the above in the case of Indra Sawhney, thus the Court held that 6 out of 9 judges Bench had come to a majority decision and held that this is no ground to revisit the judgment.

While analyzing the submission of Senior Counsel that the judgment of Indra Sawhney does not consider the impact of Directive Principles of State Policy such as Article 39(b),(c) and Article 46 on Article 16, the Court observed that Fundamental Rights and 42nd Constitutional Amendment i.e. Part-III and Part- IV of the Constitution are two kinds of State’s obligation i.e. negative and positive. The harmony and balance between Fundamental Rights and Directive Principles of State Policy is an essential feature of the Basic Structure of the Constitution. Thus, the measures taken under Articles 15(4) and 16(4) fail in all manners to be read to breach Directive Principles of State Policy. Article 16(4) and 15(4) are also measured to ensure equality of status besides the equality of opportunity.

And while giving reasoning to the submission that the principle laid down in Indra Sawhney recognized in St. Stephen's College Case [6] putting a cap of 50 percent was set aside by this Hon'ble Court in Eleven-Judge Bench in T.M.A. Pai Foundation Case [7], the Court observed that T.M.A. Pai Foundation case(supra) was a judgment of this Court interpreting Article 29 and 30 of the Constitution. The Right of Minority is a different and distinct right as recognized in the Constitution and finds a clear epoch in the 93rd Constitutional Amendment. [8] The Bench held that the 81st Constitutional Amendment [9] makes it very clear that the ceiling of 50 percent “has now received Constitutional recognition.” and exhibits the intention of the Parliament of upholding the ceiling limit.

Further, the Bench also scrutinized the report of the Gaikwad Commission taking recourse to Barium Chemicals v. Company Law Board [10] observed that a weak test for judicial scrutiny in matters within the subjective satisfaction of the scrutiny was laid down. The measures taken under Articles 15(4) and 16(4) thus, can be examined as to whether they violate any Constitutional principles, are in conformity with the rights under Articles 14, 15, and 16 of the Constitution. The scrutiny of measures taken by the State either executive or legislative, thus, has to pass the test of the Constitutional scrutiny. As also, laid down in The State of Andhra Pradesh and others vs. U.S.V. Balram, [11]. the judicial scrutiny is also permissible as to whether from the material collected by the Commission or committee the conclusion on which the Commission has arrived is permissible and reasonable.

◦ The Court observed that under the State services The Maratha community has been competing in the open category and has obtained the post as open category candidates. Calculating the percentage of Maratha representation out of the open category filled post the percentage comes to 33.23% for Grade A which was corrected as the committee mentioned earlier to be 11.16%. Similarly, in Grade B, C & D Marathas represent 29.03%, 37.06%, and 36.53% respectively.

◦ The percentage of Marathas in open category posts for IAS, IPS, and IFS is 15.5% 27.85%, and 17.97% respectively. The percentage of Marathas in open category post in Mantralaya Cadre in Grade A, B, C, and D is 37.5%, 52.33%, 52.1%, and 55.55% respectively.

Looking at the above representation of Marathas in public services, the Bench observed, one community bagging such a number of posts in public services is a matter of pride for the community and its representation in no manner can be said to be not adequate in public services. The Bench also observed that the figures obtained by the commission itself indicate that the students of the Maratha community have succeeded in open competition and got admissions in all streams of graduation and post-graduation courses and the percentage is not negligible. Paragraph 226 of the report Stated Maratha occupied all categories of posts including Head of the department, professor and assistant professor, etc.

Moreover taking into account the judgment passed by the Hon'ble High Court of Bombay in a writ petition challenging the Ordinance XIII of 2014, which provided for separate reservation to Maratha declaring them socially and educationally backward in which the Court passed a detailed interim order staying the ordinance and grant of separate reservation to Maratha community, this Hon'ble Court while scrutinizing 'social backwardness' of Maratha community, taking into account paragraph 40(e) of the interim order which observed that from 1962 to 2004, 55% MLA's were corresponding to Marathas, nearly 54% of the educational institutions in the State are controlled by Marathas, 60 to 75% of people in the management of universities are members of Maratha community. Moreover out of 105 sugar factories almost 86 are controlled by Marathas and about 23 district cooperative banks have Marathas as their Chairperson. About 71.4% of cooperative institutions in the State are under the control of Maratha community and about 75 to 90% of the land in the State is owned by the Maratha community. It was also stated by the petitioner at the time of hearing that out of 17 chief minister's 12 have been Maratha which was not disputed. Thus, the statistics show an adequate representation of the community. However, stating that the community is not proportionally represented the Gaikwad Committee had reported providing for reservation. The Court thus observed the difference between adequate, as mentioned in the Articles of the Constitution, and proportionate. The word ‘adequate’ is a relative term used in relation to the representation of different caste and communities in public employment.

Next, this Hon'ble Court while coming to the question of Constitutionality of 102nd Constitutional Amendment observed again taking recourse to the judgment delivered by this Court in the earlier case of Kalpana Mehta and others versus Union of India [12], and other cases cited therein that the debates and parliamentary speeches are admissible in Court of law. Thus looking at the same it was observed that the then Minister of social justice and empowerment on the floor of the house, clarified that the Constitutional Amendment is not to take away the power of the State to identify the Backward Classes in the State for the purpose of the State and was confined to Central list which was being prepared by the Government of India as in earlier regime. It was submitted by the petitioner that the scheme of Article 342 has to be interpreted in accordance with an already existing scheme under Article 341 and 342. But it was observed by the Bench that there is a vast difference between the list of Schedule Cast and Schedule Tribe as contemplated by Article 341 and 342 and of those of backward classes which now is contemplated under Article 342A. As the concept of Schedule Cast and Schedule Tribe was well-known even before the enforcement of the Constitution, the Government of India Act 1935 defines Schedule Caste [13]. However the expression 'backward class' does not find any place in the Government of India Act 1935.

  • Thus under Article 16(4), the State is empowered to make any provision for reservation of appointment or posts in favor of any backward class of citizens not adequately represented in services. When the Constitution empowers the State to make any provision, the provision may embrace all aspects of measures including the identification of the backward classes. This has been accepted and recognized by the Constitution Bench of this Court in Indra Sawhney.

  • Regarding submissions made for the expression ‘central list’ in Article 342A(2), The Court observed the importance of the directions issued by the Constitution Bench in Indra Sawhney, the Parliament has enacted the National Commission for Backward Classes Act 1993. Section 2(c) of which defines that 'central list' is related to services under the Government of India Act 1993 and was not to govern or regulate identification of backward classes by the concerned States. The National Commission for Backward Classes by the Constitutional 102nd Amendment was given a Constitutional status which was available as statutory commission under 1993 enactment.

  • In the State of Maharashtra, the Maharashtra State Backward Classes Commission Act was enacted in 2005. The parliamentary select committee report dated 17 July 2017 and the Minutes of the parliamentary standing committee indicating that it was well known that there are two lists of backward classes- one central list and another State list. It was clarified and expressed that Constitutional Amendment is only with regard to the ‘central list’ which expression was expressly included in Article 342A(2). The use of an extra word ‘central’ before the expression ‘ list of socially and educationally backward classes’ thus has to presume that the use of the additional word is for a purpose and object and it is not superfluous or redundant. The definition clause under Article 366(26c) has to be read contextually and thus the definition is relevant in the context of ‘central list’ and the definition is not governing to list prepared by the State which was not under contemplation in Article 342A.

  • Therefore, making the above observations, the Court held that there was no merit in the challenge to the Constitutional Amendment, and hence the same does not require any ratification. The argument of procedural violation in passing the 102nd Constitutional Amendment was not accepted and the interpretation of the 102nd Constitution Amendment was laid down in the above manner.

AUTHOR'S OPINION - Taking recourse to the above analysis and observations made by the Hon'ble Supreme Court, I am of the inferred opinion that the Bench has rightly ruled against the Maratha reservation. Looking at statistics in the above judgment as well as the fact that the reports of earlier 3 National as well as 3 State Commissions denying reservation to the Maratha Community, representation of the community in 'social' as well as 'educational' spheres, it is rather a matter of pride and triumphant.

Moreover, providing reservations is not the only means and method for improving and advancing the welfare of any community. Providing educational facilities free of cost to the members of any community, concession in fee to groups/communities for strategic intervention to change their socio-economic condition is another way that can be adopted. The Counsels for the State of Maharashtra raised an argument regarding 30% of farmer suicides corresponding to the Maratha community. In my opinion, granting reservations on this basis would not help uplift the farming sector or reduce the number of farmer’s suicide. Perhaps a reason for a farmer’s suicide is not merely social or educational backwardness it rather is due to unfollowed minimum support price system, debts, increased cost of cultivation, apathy towards the governing system, etc.

Granting education unless these problems are solved and revolutionary changes are brought, would not only lead to a continued chain of farmer’s suicide but also would lead, to every son of a farmer or others choosing to not take interest in the farming sector, to India forgetting its roots!

[1] The 102nd Amendment of the Constitution of India, officially known as the Constitution (One Hundred and Second Amendment) Act, 2018, granted constitutional status to the National Commission for Backward Classes (NCBC).

[2] INDIA CONST. art. 342A and art. 366, cl. (26c); inserted by the Constitution (One Hundred and Second Amendment) Act, 2018.

[3] Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra, (Diary No. 23618/2019), at page 74.

[4] Id, at page 108.

[5] Raj Narain Singh v. Chairman, Patna Administration Committee, Patna & Anr, AIR 1954 SC 569.

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

[7] T.M.A.Pai Foundation & Ors vs State Of Karnataka & Ors., (2002) 8 SCC 481.

[8] 93rd Constitutional Amendment Act, 2005, by which sub-clause (5) has been added in Article 15 excludes the minority educational institutions referred to in clause (1) of Article 30. Sub-clause (5) of Article 15 is a clear constitutional indication that with regard to rights of minority regarding admission to educational institutions, the minority educational institutions referred to in clause (1) of Article 30 are completely excluded.

[9] Article 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 percent reservation on the total number of vacancies of that year.

[10] Barium Chemicals v. Company Law Board, AIR 1967 SC 295.

[11] The State of Andhra Pradesh and others vs. U.S.V. Balram, (1972) 1 SCC 660.

[12] Kalpana Mehta and Ors. v. Union of India, (2018) 7 SCC 1.

[13] The Government of India Act, 1935, Schedule I, Para 26.

*The views of the author are personal.

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