The Maharashtra government's move to reserve 16% seats for Marathas and 5% for Muslims in jobs and educational institutions may help the Congress-NCP alliance win back its traditional vote bank in the Assembly elections. But the real test for the government would be to ensure its decision passes
The proposal can be challenged on two grounds. The Constitution doesn't allow reservation on basis of race, religion and caste, and second it exceeds the 50% reservation cap fixed by the Supreme Court.
In 2010, the Andhra Pradesh high court struck down a law allowing 4% reservation for Muslims. On the state's appeal, the SC cleared reservation for 14 groups identified as backward, but only till 2010. It kept in abeyance a clause envisaging reservation for all Muslims and referred the matter to a larger bench.
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Tamil Nadu's move to exceed the 50% cap is pending before a Constitution bench.
According to article 15 and 16 of the Constitution, there can be no reservation on the basis of race, religion and caste.
The SC has backed this with several verdicts, underlining that reservation can't extend to an entire community, and an identification process needs to be carried out.
Supreme Court advocate Gopal Sankanarayanan said reservation under OBC and ST categories do not distinguish beneficiaries on the basis of religion. Muslims falling in the two categories are entitled to share the quota. But, in case of a specific reservation for Muslims, the identification of backwardness is religion, which is not envisaged by the Constitution.
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As far as public employment is concerned, Article 16 (2) states that you can't discriminate against anybody on grounds of religion, place of birth or residence. Article 15 also prevents the state from discriminating against a person either born or residing outside Maharashtra, or a person not born a Muslim, while seeking admission to educational institutions,Sankanaryanan said.
Former additional solicitor general Vivek Tankha, who was also the advocate general of Madhya Pradesh government, said the decision flouts the 50% embargo.
In MP, the government under Digvijaya Singh exceeded the reservation limit, which was struck down by the HC and SC, he said.
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Tankha said there may not be any cap in scheduled areas if notified by the President. The SC has allowed 100% reservation for tribals residing in scheduled areas. But this can be done after backward classes are identified and notified.
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