As a precautionary measure, the Maharashtra Government on Monday filed a caveat in the Supreme Court seeking a hearing in the event of anyone challenging the new Maharashtra Reservation Act granting 16 per cent reservations to Marathas in education and jobs.
The move came three days after Maharashtra Governor C Vidyasagar Rao signed the Maratha reservation bill facilitating its enactment. The bill had earlier been passed unanimously by both the Houses of Maharashtra on November 29.
The caveat, filed by Advocate Nishant Katneswarkar on behalf of the Maharashtra Government in the apex court, reads thus: “No order be passed in the matter without notice to the Maharashtra government. The caveator (Maharashtra government) was the authorised party who issued the Maharashtra Act.”
Earlier on November 30, a social worker Vinod Patil, who had field a petition opposing the reservations to Marathas, had filed a caveat at the Bombay High Court. That caveat had read thus: “No interim reliefs, stay, injunction, order of any nature be passed without due notice under section 148A (right to lodge a caveat) of the Civil Procedure Code as he is likely to move court by filing a petition seeking to challenge the order passed on November 29, 2018 passed by the Maharashtra State by providing 16% reservation to the Maratha community.”
A caveat is a legal process in which a party that files it before the concerned court, will be given a hearing and the court can’t pass any order without hearing its side.
There is an apprehension among the ruling, Opposition parties and Maratha community members that the high court or Supreme Court may take cognisance of the petitions challenging the new Maratha reservation law – better known as the Maharashtra State (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.
The apprehension emanates from the fact that by enacting a law granting 16 per cent reservations to Marathas, the Maharashtra Government has exceeded the 50 per cent cap on reservations imposed by the Supreme Court and in the process followed the suit of the Tamil Nadu Government.
Currently Maharashtra has 52 per cent reservations in jobs and educational institutions. Of the total 52 per cent reservations, SCs and ST communities account for 13 and 7 per cent, respectively, while OBCs have 19 per cent per cent reservations, Together, Special Backward Class and Nomadic Tribes account for 13 per cent.
The Marathas, who have now been accorded 16 per cent reservations in education and government jobs, account for nearly 33 per cent of the total 11.25 crore population of Maharashtra.
Once the Maharashtra State SEBC Act comes into force, then the total reservations in the State will go up to 68 per cent — next only to Tamil Nadu that has 69 per cent.
Though Devendra Fadnavis dispensation has not clarified as to how it face the scrutiny of the new law in the Supreme Court, it looks like the Maharashtra government will take the route taken by the Tamil Nadu government under late chief minister Jayalalithaa, which achieved its objective of increasing reservations to 69 per cent by passing the Tamil Nadu Act of 1994 and adding the 1994 Act to the Ninth Schedule of the Constitution.
Article 31B of the Constitution stipulates that the legislation in the Ninth Schedule cannot be challenged in courts. However, in 2007, the Supreme Court in IR Coelho v. State of Tamil Nadu ruled that even those laws which are placed in the Ninth Schedule are subject to judicial review if the laws violate the basic structure of the Constitution. Interestingly enough, a petition challenging the Tamil Nadu Reservation policy is expected to come up for hearing before the Supreme Court in the near future.
Even for getting its Maharashtra Reservation Act 2018 included in the Ninth Schedule of the Constitution, the BJP-led Maharashtra government will have to involve the BJP-led Narendra Modi government which of course will be more than willing to help the Devendra Fadnavis dispensation. But, the move will have to undergo due Constructional processes which will take time – a thing the BJP-led Maharashtra government does not have on hand.