The Maharashtra government has responded to the public interest litigations (PILs) challenging its decision to extend the benefit of reservations to Maratha and Muslim communities, saying there is no law laying down a ceiling of 50% on the total reservation.
“... That the reservation exceeds 50% ipso facto does not render it unconstitutional,” advocate general Darius Khambata told the Bombay high court on Wednesday. Claiming there was no cap of 50% on total constitutional reservation, Khambata cited several judgments of the Supreme Court to point out that the apex court itself has held that while the upper limit of 50% is the rule, there can always be exceptions, in view of India’s diversity.
He submitted that a three-judge bench of the SC, while interpreting its judgment in the M Nagraj case, had held that total reservation can exceed 50%, if is based on quantifiable data necessitating the decision. He said the June 25 decision of the state cabinet was backed by data which showed the two communities are socially and educationally backward.
“The law of the land is as long as there is quantifiable data, you can go beyond 50%,” Khambata said. “It is not that the moment you go to 51%, the reservation must be struck down.”
The advocate general was responding to the volley of PILs challenging the state’s decision to extend reservations to Marathas (16%) and Muslims (5%) in education and government service.
At least two of the petitioners — former journalist Ketan Tirodkar and NGO Indian Constitutionalist Council — have contended that the state’s decision was contrary to the principles laid down by the SC in Indira Sahney’s case. Khambata, however, claimed that even in Sahney’s case, the SC had said the state could go beyond 50%, but such excessive reservation should be on the basis of justifiable reasons.