File photo: Supreme Court of India.(Sonu Mehta/HT PHOTO)
File photo: Supreme Court of India.(Sonu Mehta/HT PHOTO)

'Does 50% reservation limit need a relook?' SC asks states after 29 years

  • The apex court framed this as one among the several questions to be decided while considering the constitutional validity of a 2018 Maharashtra law.
By Abraham Thomas
UPDATED ON MAR 08, 2021 10:47 PM IST

The Supreme Court on Monday asked states whether they were in favour of extending caste-based reservation beyond the 50 per cent ceiling set by it in a nine-judge bench ruling in 1992, famously known as the Indra Sawhney case.

A five-judge Constitution bench of the apex court framed this as one among the several questions to be decided while considering the constitutional validity of a 2018 Maharashtra law that gave 16 per cent reservation to the Maratha community in jobs and admissions by terming them socially and educationally backward class in the state. This law got past the scrutiny of the Bombay High Court in June 2019 but the quantum of reservation stood reduced to 12 per cent in admissions and 13 per cent in jobs.

With the introduction of this Act, the reservation benefits in the state exceeded 50 per cent, clearly attracting the bar fixed by the nine-judge bench ruling in the Sawhney case. It was by this judgment, the Supreme Court had in 1992 approved a 27 per cent quota for other backward classes (OBC) by excluding the creamy layer. The petitions challenging the Maharashtra law demanded the law be struck down as unconstitutional as it transgressed the judicially-fixed ceiling of 50 per cent.

On Monday, the five-judge bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat said, “The questions which we propose to consider are whether the judgment in case of Indra Sawhney v. Union of India (1992) needs to be referred to a larger bench or require a re-look by the larger bench in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society.”

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In addition to Maharashtra, there are three other states – Tamil Nadu, Haryana and Chhattisgarh - which have passed similar laws exceeding the 50 per cent reservation mark and are under challenge in the Supreme Court. Three days ago, the top court had decided to hear the challenge to Tamil Nadu's 69 per cent quota law after deciding the Maratha quota case.

The Maharashtra government submitted that Indra Sawhney judgment did not bar states from exceeding 50 per cent if extraordinary reasons exist to do so. The bench agreed to examine if the Maharashtra law - Maharashtra State Reservation (of seats for admission in educational institutions in the state and for appointments in the public services and posts under the state) for Socially and Educationally Backward Classes (SEBC) Act, 2018 is covered by “extraordinary situation” as contemplated by Indra Sawhney case.

The state banked on a report prepared by former judge, Justice (Retd) MG Gaikwad who listed out parameters to show backwardness suffered by Marathas.

Senior advocate Mukul Rohatgi, appearing for Maharashtra, further pointed out that all states must be heard in the matter as Court will also be required to interpret the Constitution (One Hundred and Second Amendment) Act 2018 by which Article 342A was inserted in the Constitution.

This provision allows the President, in consultation with the Governor, to specify socially and educationally backward classes (SEBC) in relation to any state or Union territory. Even Parliament is empowered by this provision to amend the Central List of socially and educationally backward classes.

Rohatgi argued that this law withdraws the power of the state legislature to make a reservation for SEBCs under Article 15(4) and Article 16(4) of the Constitution.

Since the introduction of this law in 2018, the Supreme Court is yet to consider the impact of Article 342A. Senior advocates Kapil Sibal and Abhishek Manu Singhvi, who appeared for private petitioners, supported the state and said that the issue impacts federalism (a division of powers between Centre and states), one of the basic features of the Constitution.

Attorney General KK Venugopal assisting the Court in the matter was of the view that an interpretation involving the 102nd Constitutional amendment can affect states and hence they need to be heard.

The order said,” In view of the issues of seminal importance which have arisen before this Constitution Bench i.e. pertaining to the interpretation of 102nd Constitutional Amendment, the states have to be given opportunity to have their say.” The Court asked the Registry to send notices to all states by tomorrow along with an email to respective chief secretaries.

Besides relying on whether the 50 per cent reservation limit needs a relook, the note to be submitted by states will have submissions on Constitution 102nd Amendment Act too. The bench asked states to reply whether this provision “abridged” the states' power to legislate in favour of any backward class, whether Article 342A restricts the states to legislate or classify any backward class of citizens and finally, whether such a provision affects the federal policy or structure of the Constitution.

The matter will now come up on March 15 by when the states will be filing their responses. The petitioners who have challenged the Maharashtra law will begin arguments on that day and will get three days to complete submissions. The Court will then hear Maharashtra, Attorney General and other states on the six questions framed and by March 25, proceedings in the case are expected to get over.

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