Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In a big development, the 5-judge bench of Ashok Bhushan, S.A. Nazeer, L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has quashed the much in debate Maratha Reservation and has held that the 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 [ 2018 Act] as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is not covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney[1]’s case.

Questions framed

  1. Whether judgment in case of Indra Sawhney v. Union of India [1992 Suppl. (3) SCC 217] needs to be referred to larger bench?
  2. Whether the 2018 Act as amended in 2019 granting 12% and 13% reservation for Maratha community in addition to 50% social reservation is covered by exceptional circumstances as contemplated by Constitution Bench in Indra Sawhney’s case?
  3. Whether the State Government on the strength of Maharashtra State Backward Commission Report chaired by M.C. Gaikwad has made out a case of existence of extraordinary situation and exceptional circumstances in the State to fall within the exception carved out in the judgment of Indra Sawhney?
  4. Whether the Constitution 102nd Amendment deprives the State Legislature of its power to enact a legislation determining the socially and economically backward classes and conferring the benefits on the said community under its enabling power?
  1. Whether State’s power to legislate in relation to “any backward class” under Articles 15(4) and 16(4) is anyway abridged by Article 342(A) read with Article 366(26c) of the Constitution of India?
  2. WhetherArticle 342A of the Constitution abrogates States power to legislate or classify in respect of “any backward class of citizens” and thereby affects the federal policy / structure of the Constitution of India?]

While all judges agreed with the opinion of Justice Bhushan on Question Numbers 1, 2 and 3, Justice L. Nageswara Rao and Hemant Gupta agreed with Justice Ravindra Bhat’s opinion on Question Numbers 4, 5 and 6. Justice L. Nageswara Rao also wrote a separate opinion.[2]

Timeline and trajectory

  • The “Maratha” is a Hindu community which mainly resides in the State of Maharashtra.
  • After the enforcement of the Constitution of India, the President of India in exercise of power under Article 240 appointed a Commission to investigate the conditions of all such socially and educationally backward classes, the first National Commission for backward classes did not find Maratha as other backward class community in the State of Bombay and stated,

“In Maharashtra, besides the Brahman it is the Maratha who claimed to be the ruling community in the villages, and the Prabhu, that dominated all other communities”.

  • The Maratha was included in forward Hindu caste, by the second National Backward Classes Commission.
  • The National Commission for Backward Classes conducted public hearing at Mumbai and after hearing Government officials, Chairman of the Maharashtra State Backward Classes Commission submitted a detailed report dated 25.02.1980 holding that Maratha is not a socially and educationally backward class community but a socially advanced and prestigious community.
  • The Maharashtra State OBC Commission headed by Justice R.M. Bapat submitted a report on 25.07.2008 conclusively recording that Maratha could not be included in the OBC list because it is a forward caste. The review of the findings was rejected on 03.06.2013.
  • Despite the existence of statutory State OBC Commission, the Government of Maharashtra appointed a special Committee headed by a sitting Minister, Shri Narayan Rane to submit a report on the Maratha Caste. On 26.02.2014 Rane Committee submitted its report to the State and recommended that for the Maratha special reservation under Article 15(4) and 16(4) of the Constitution of India be provided.
  • On 09.07.2014 Maharashtra Ordinance No.XIII of 2014 was promulgated providing for 16% reservation in favour of the Maratha caste.
  • The Maharashtra Legislature passed the Act, 2014 on 23.12.2014 which received the assent of the Governor on 09.01.2015 and was deemed to have come into force with effect from 09.07.2014.
  • On 14.08.2018 the National Commission for Backward Classes (Repeal) Act was passed repealing the National Commission for Backward Classes Act, 1993.
  • On 15.08.2018 the Constitution (102nd Amendment) Act, 2018 was brought into force adding Article 338B, 342A and 366(26C). Article 338, sub-clause (10) was also amended.
  • On 15.11.2018, the State Backward Classes Commission submitted its report declaring Maratha caste of citizens as social and economic backward class of citizens with inadequate representation in services.
  • The Government after receipt of the above report enacted Act, 2018 which was published on 30.11.2018.

Revisiting Indira Sawhney judgment

The crux of 6 separate judgments delivered by the 9-judge bench in the case was:

(i) Reservation under Article 16(4) should not exceed 50%.

(ii) For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which extreme caution is to be exercised.

All 5 judges in the present case agreed that there was no need to revisit the ratio laid down in the landmark judgment in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC.

“To change the 50% limit is to have a society which is not founded on equality but based on caste rule. The democracy is an essential feature of our Constitution and part of our basic structure. If the reservation goes above 50% limit which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same. Thus, answer to the question posed is that the percentage of 50% has been arrived at on the principle of reasonability and achieves equality as enshrined by Article 14 of which Articles 15 and 16 are facets.”

The bench also noticed that the judgment of Indra Sawhney is being followed for more than a quarter century without there being any doubt raised in any of the judgments about the 50%, the 50% rule has been repeatedly followed.

“There can be no quarrel that society changes, law changes, people changes but that does not mean that something which is good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone.”

The “misunderstanding” in the MC Gaikwad report

The Commission relied on the Constitution Bench judgment in M. Nagaraj and took the view that on the quantifiable data ceiling of 50% can be breached. It hence noted,

“Based on the population of 30%, Commission has arrived at a conclusion that the total percentage of State population which is entitled for the constitutional benefits and advantages as listed under Article 15(4) and Article 16(4) would be around 85% and this is a compelling extra-ordinary situation demanding extra-ordinary solution within the constitutional framework. …”

However, the Constitution Bench in M. Nagaraj has noticed majority opinion in Indra Sawhney has held that rule of 50% was a binding rule and not a mere rule of prudence.

The Constitution bench had held that,

“The State is not bound to make reservation for SCs/STs in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”

The Constitution Bench, thus, had clearly laid down that even reservation for promotion, ceiling of 50% limit cannot be breached. Hence, the Commission has completely erred in understanding the ratio of the judgment.

“The Marathas are dominant forward class and are in the main stream of National life.”

2019 Amendment granting separate reservation to Maratha Community unconstitutional

The Court noticed that no extraordinary circumstances were made out in granting separate reservation of Maratha Community by exceeding the 50 percent ceiling limit of reservation. The 2018 Act violates the principle of equality as enshrined in Article 16. The exceeding of ceiling limit without there being any exceptional circumstances clearly violates Article 14 and 16 of the Constitution which makes the enactment ultra vires.

“The statement and object of the bill clearly indicates that the State has formed the opinion on the basis of the report of the Commissions and had accepted the reasons given by the Commission holding that extraordinary circumstances for exceeding the ceiling limit is made out.”

Directions

  • The admissions insofar as Postgraduate Medical Courses which were already held not to affect by order dated 09.09.2020, which shall not be affected by this judgment. Hence, those students who have already been admitted in Postgraduate Medical Courses prior to 09.09.2020 shall be allowed to continue.
  • The admissions in different courses, Medical, Engineering and other streams which were completed after the judgment of the High Court dated 27.06.2019 till 09.09.2020 are saved. Similarly, all the appointments made to the members of the Maratha community in public services after the judgment of the High Court dated 27.06.2019 till order passed by this Court on 09.09.2020 are saved. However, no further benefit can be claimed by such Maratha students admitted in different course or Maratha students who were appointed in public services in the State under Act, 2018.
  • After the order was passed on 09.09.2020 neither any admission can be taken in the educational institutions nor any appointment can be made in public services and posts in accordance with Act, 2018.

[ Dr. Jaishri Laxmanrao Patil v. The Chief Minister, 2021 SCC OnLine SC 362, decided on 05.05.2021]


Judgment by: Justice Ashok Bhushan, Justice L. Nageswara Rao and Justice S. Ravindra Bhat

Appearances before the Court:

K.K. Venugopal, Attorney General for India and Tushar Mehta, Solicitor General.

Senior Advocates Arvind Datar, Gopal Sankaranarayanan, Mukul Rohatgi, Shekhar Naphade, P.S. Patwalia, Kapil Sibal, Dr. Abhishek Manu Singhvi, Dr. Manish Singhvi, C.U. Singh, V. Shekhar, S. Niranjan Reddy, Jayanth Muth Raj, Jaideep Gupta and Mahalakshmi Pavani

Advocates Manish Kumar, Karan Bharihok, Vinay Arora, Arun Bhardwaj, Amit Kumar, Pradeep Misra, Tapesh Kumar Singh, Diksha Rai, A.P. Singh, Shriram Pingle, V.K. Biju, Hrishikesh s. Chitaley, Kaleeswaram Raj, Ashok Arora and Akash Avinash Kakade.


[1] Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217

[2] The analyses of question number 4 to 6 will be dealt with in separate post.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has referred to a larger bench, the substantial question of the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018. It further stayed the implementation of the 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 and said,

“Implementation of the Act for admissions in educational institutions and appointments to public posts during the pendency of these Appeals will cause irreparable loss to the candidates belonging to the open category. It will be difficult to cancel the admissions made in the educational institutions and appointments made to the public posts by implementing the reservations as per the Act.”

Background

The said order of the court came in the matter challenging the constitutional validity of a Maharashtra law, which grants reservation to the Maratha community in education and jobs. The plea had challenged the Bombay High Court order that upheld the constitutional validity of the quota for the Maratha community in education and government jobs in Maharashtra. Bombay High Court had on June 27, 2019, said the 50 per cent cap on total reservations imposed by the Supreme Court could be exceeded in exceptional circumstances.

The 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 which came into force on 30.11.2018, declared Marathas to be a “Socially and Educationally Backward Class”. Reservations to the extent of 16 per cent of the total seats in educational institutions including private educational institutions and 16 per cent of the total appointments in direct recruitment for public services and posts under the State, were separately made for “socially and educationally backward classes” according to Section 4 of the Act.

Observations by Supreme Court

On reference of appeals to a larger bench

Stating that it did not agree with the argument that the Appeals warrant reference to a larger Bench, the Court said that

“Undoubtedly, this Court in Indra Sawhney held that reservations contemplated in Article 16 (4) should not exceed 50 per cent except in certain extraordinary situations. This Court in Indra Sawhney was of the opinion that extreme caution has to be exercised and a special case must be made out for exceeding the limit of 50 per cent. The ceiling limit of 50 per cent on reservations has been re-affirmed by this Court in M. Nagaraj (supra). As the question relating to the extent of reservation has already been decided by this Court, it cannot be said that any substantial question of law as to the interpretation of the Constitution arises in this case.”

On reference of question of interpretation of the Constitution (102nd Amendment) Act, 2018

The High Court has considered the issue whether the Constitution (102nd Amendment) Act, 2018 affects the competence of the State Legislature to declare a particular caste to be a socially and educationally backward class. According to the writ petitioners in the High Court, the State Legislature has been denuded of this power after the Constitution (102nd Amendment) Act, 2018 came into force. The High Court rejected the said contention and upheld the legislative competence of the State Legislature. There is no authoritative pronouncement on the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018.

The Supreme Court found force in the submissions made on behalf of the Respondents relating to the Constitution (102nd Amendment) Act, 2018. It said,

“interpretation of Articles 338-B and 342-A, which are inserted by Constitution (102nd Amendment) Act, 2018, involves a substantial question of law as to the interpretation of the Constitution and the determination of such question is necessary for the disposal of the Appeal. Thus, as mandated by Article 145 (3) of the Constitution of India, these Appeals require to be considered by a larger Bench.”

On passing interim order

Noticing that no doubt true that the Act providing reservations has been upheld by the High Court and the interim relief sought by the Appellants would be contrary to the provisions of the Act, the Court said that

“However, if the Court is convinced that the statute is ex-facie un-constitutional and the factors like balance of convenience, irreparable injury and Public Interest are in favour of passing an interim order, the Court can grant interim relief. There is always a presumption in favour of the constitutional validity of a legislation. Unless the provision is manifestly unjust or glaringly un-constitutional, the courts do show judicial restraint in staying the applicability of the same.”

It said that normally an interim order is not passed to stultify statutory provisions. However, there is no absolute rule to restrain interim orders being passed when an enactment is ex facie un-constitutional or contrary to the law laid down by this Court.

On the applicability of law laid down in Indra Sawhney

Applying the law laid down by the Court in Indra Sawhney v. Union of India,1992 Supp. (3) SCC 217, the Court was of the prima facie opinion that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent.

“Maratha community which comprises of 30 per cent of the population in the State of Maharashtra cannot be compared to marginalized sections of the society living in far flung and remote areas. The State has failed to make out a special case for providing reservation in excess of 50 per cent. Neither has any caution been exercised by the State in doing so.”

The Court explained that the factors termed as extraordinary and exceptional, justifying reservations in excess of 50 percent are those required for the purpose of providing reservations. The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent.

It was, hence, prima facie of the opinion that the High Court committed an error in treating the above factors as circumstances which are extraordinary, warranting relaxation of the strict rule of 50 percent. Admittedly, reservations provided to the Maratha community were implemented in educational institutions for one academic year only. It, hence, observed,

“Implementation of the Act for admissions in educational institutions and appointments to public posts during the pendency of these Appeals will cause irreparable loss to the candidates belonging to the open category. It will be difficult to cancel the admissions made in the educational institutions and appointments made to the public posts by implementing the reservations as per the Act.”

Directions

(A) As the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is a substantial question of law as to the interpretation of the Constitution of India, these Appeals are referred to a larger Bench. These matters shall be placed before Hon’ble The Chief Justice of India for suitable orders.

(B) Admissions to educational institutions for the academic year 2020-21 shall be made without reference to the reservations provided in the Act. We make it clear that the Admissions made to Post-Graduate Medical Courses shall not be altered.

(C) Appointments to public services and posts under the Government shall be made without implementing the reservation as provided in the Act.

[Dr. Jaishri Laxmanrao Patil v. The Chief Minister, 2020 SCC OnLine SC 727, decided on 09.09.2020]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: Holding the Government Office Ms. No.3 dated 10.1.2000 issued by the erstwhile State of Andhra Pradesh providing 100% reservation to the Scheduled Tribe candidates out of whom 33.1/3% shall be women for the post of teachers in the schools in the scheduled areas in the State of Andhra Pradesh, unconstitutional, the 5-judge bench of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah and Aniruddha Bose, JJ has held that there was no rhyme or reason with the State Government to resort to 100% reservation.

“It was least expected from the functionary like Government to act in aforesaid manner as they were bound by the dictum laid down by this Court in Indra Sawhney and other decisions holding that the limit of reservation not to exceed 50%.”

The Court noticed that a similar G.O. was issued by the erstwhile State Government of Andhra Pradesh in the year 1986, which was quashed by the State Administrative Tribunal, against which an appeal was preferred in this Court, which was dismissed as withdrawn in the year 1998. After withdrawal of the appeal from this Court, it was expected of the erstwhile State of Andhra Pradesh not to resort to such illegality of providing 100% reservation once again.  But instead, it issued G.O. Ms. No.3 of 2000, which was equally impermissible, even if the A.P. Regulation of Reservation and Appointment to Public Services Act, 1997 would have been amended, in that event also providing reservation beyond 50% was not permissible.

Agreeing to the apprehensions of the appellants that the State may again by way of mis­adventure, resort to similar illegal exercise as was done earlier, the Court directed the State of Andhra Pradesh to not exceed the limits of reservation in future. It said,

“In the peculiar circumstance, we save the appointments conditionally that the reorganised States i.e. the States of Andhra Pradesh and Telangana not to attempt a similar exercise in the future. If they do so and exceed the limit of reservation, there shall not be any saving of the appointments made, w.e.f. 1986 till date.”

The Court also held that the notification in question cannot be treated as classification made under Article 16(1). Once the reservation has been provided to Scheduled Tribes under Article 16(4), no such power can be exercised under Article 16(1). The notification is violative of Articles 14 and 16(4) of the Constitution of India.

It, further, held that the conditions of eligibility in the notification with a cut­off date, i.e., 26.1.1950, to avail the benefits of reservation, were also unreasonable and arbitrary.

The Court also answered, in detail, the questions relating to scope of power of the Governor. Here’s a summary of the other questions referred to and answered by the Court:

Scope of paragraph 5(1), Schedule V to the Constitution of India:

Under Para 5(1), Fifth Schedule of the Constitution, the Governor can:

  • exercise the powers concerning any particular Act of the Parliament or the legislature of the State.
  • direct that such law shall not apply to the Scheduled Areas or any part thereof
  • apply such law to the Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and can also issue a notification with retrospective effect.

Governor’s power to make a new law

Under Para 5(1), Fifth Schedule of the Constitution, the Governor can:

direct that any particular Act of Parliament or the Legislature of the State, shall not apply to a Scheduled Area or apply the same with exceptions and modifications.

make a provision within the parameters of amendment/modification of the Act of Parliament or State legislature.

“The power to make new laws/regulations, is provided in Para 5(2), Fifth Schedule of the Constitution for the purpose mentioned therein, not under Para 5(1) of the Fifth Schedule to the Constitution of India.”

Does the power to make new laws extend to subordinate legislation?

No, the power does not extend to subordinate legislation, it is with respect to an Act enacted in the sovereign function by the Parliament or legislature of the State which can be dealt with.

Can the exercise of the power conferred Under Para 5(1), Fifth Schedule of the Constitution override fundamental rights guaranteed under Part III?

The power is subject to some restrictions, which have to be observed by the Parliament or the legislature of the State while making law and cannot override the fundamental rights guaranteed under Part III of the Constitution.

Does the exercise of such power override any parallel exercise of power by the President under Article 371D?

No, the Governor cannot override the notification issued by the President in the exercise of powers under Article 371D. The power has to be exercised harmoniously with such an order issued under Article 371D, not in conflict thereof.

[Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, 2020 SCC OnLine SC 383 , decided on 22.04.2020]