In a big boost to the BJP-led Maharashtra Government, the Bombay High Court on Thursday upheld its decision to accord reservations to the Maratha community but directed the Devendra Fadnavis dispensation to bring down the quantum of the approved reservation from 16 per cent to 12 per cent in educational institutions and 13 per cent in Government jobs.
After upholding the “legislative competence” of the State Government to create a separate category of the Socially and Educationally Backward Classes (SEBC) and grant reservation, a HC Bench of Justices Ranjit More and Bharati Dangre noted that 16 per cent of reservations as approved by the Government “is not justifiable”.
“We hold and declare that the State Government possesses legislative competence to create a separate category of the Socially and Educationally Backward Class and grant reservation,” the Judges said.
“We hold and declare that the report of the Gaikwad Commission has set out the exceptional circumstances and extra-ordinary situations justifying crossing of the limit of 50 per cent reservation as set out in the Indra Sawhney case,” the judges noted.
“We hold and declare that the State Government in exercise of its enabling power under Articles 15(4)(5) and 16(4) of the Constitution of India is justified, in the backdrop of report of MSBCC, in making provision for separate reservation to Maratha community,” the HC division Bench ruled.
However, the HC Bench did not approve of 16 per cent reservations accorded by the State Government for the beneficiaries falling under the SEBC category. It suggested a way forward in the form of reduction in reservations to Marathas from the flat 16 per cent to 12 per cent in educational institutions and 13 per cent in Government jobs.
The petitioners — who had earlier argued before the court that the grant reservations to Marathas in educational institutions and jobs amounted to providing their community with “permanent crutches” — told the HC that the State Government’s move violated the cap of 50 per cent fixed on reservations by the Supreme Court.
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.
It may be recalled that on November 29, 2018, both the Houses of the Maharashtra Legislature had passed a Bill according reservations 16 per cent reservations in education and Government jobs to the Maratha community in the State, thus paving way for enactment of a law.
Following the passage of the Maratha Reservation Bill in both the Houses of Maharashtra, several petitions were filed in the Bombay High Court challenging the State Government’s decision which resulted in the increase of the percentage of reservations from 52 to 68 per cent.
On his part, Maharashtra Chief Minister Devendra Fadnavis welcomed the judgement by saying, “We have won a major legal battle. Without affecting the reservation benefits enjoyed by OBCs, we have succeeded in granting social and educational reservations to Marathas”. He thanked the members of the State Legislature and judiciary for Thursday’s development.
However, by evening, it became clear that the High Court’s verdict on Thursday will in all likelihood come under the scrutiny of the Supreme Court.
Advocate Vijayalaxmi Khopade, who had filed an intervention application in the case on behalf of MLC Haribhau Rathod, said her client would challenge Thursday’s High Court’s verdict in Supreme Court. “It is a flawed judgement. After going through the full verdict, we will challenge it in the apex court,” Vijayalaxmi said.
“On one hand, the HC did not find it justifiable to grant 16 per cent reservation to the Marathas. While on the other, the court directed the State Government to bring down the quantum of reservation from 16 per cent to 12 per cent in educational institutions and 13 per cent in Government jobs. We want to go through the judgement as to what logic behind the quantum of reservations to Marathas in a manner the HC has done.
“I have argued before the court that Marathas do not constitute 32 per cent of total 11.25 crore population of the State. The High Court has upheld the findings of the Gaikwad commission report which has now relegated the Marathas to the category of educational and social backwardness. But, the fact remains Marathas are a dominant community in the State. With Marathas getting reservation, the total reservation percentage in the State has now far surpassed the 50 per cent limit imposed by the apex court”.
On its part, the Maharashtra Government - by seeking to enact a law granting 16 per cent reservations to Marathas and in the process exceeding the 50 per cent cap on reservations imposed by the Supreme Court - had taken the Tamil Nadu government’s route of attempting to circumvent the apex court’s cap on reservations.
If and when Maharashtra’s Marathas reservation law comes under the scrutiny of the Supreme Court, one has to see whether the State 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 legislations 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 pending before the Supreme Court in the near future.
It remains to be seen if the Maratha reservation law passes the scrutiny of the Supreme Court or does not get stayed in the apex court.