The Indian Express: 27.06.2019
State govt gave 16%, High Court rules 12% in education & 13% in govt jobs.
THE BOMBAY High Court Thursday upheld the Maharashtra government’s decision to provide reservation to the Maratha communityunder the Socially and Educationally Backward Classes (SEBC) Act, 2018.
However, the court ruled that the 16 per cent quota granted by the state is not “justifiable” and reduced it to 12 per cent in education and 13 per cent in government jobs, as recommended by the Maharashtra State Backward Class Commission (MSBCC).
The bench of Justice Ranjit More and Justice Bharati H Dangre said: “We hold and declare that the limit of reservation should not exceed 50%. However, in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, inadequacy of representation and without affecting the efficiency in administration.”
The bench said that it upheld the report of the MSBCC, which set out the “exceptional circumstances and extraordinary situation” justifying the crossing of the limit of 50 per cent, as set out by the Supreme Court in the Indra Sawhney case of 1992. The bench also ruled that the state government had the “legislative competence” to enact the SEBC Act.
The assembly elections are due in Maharashtra in October, and Marathas form the single largest caste bloc, accounting for 30 per cent of the population. The High Court order is likely to benefit the BJP-led government and Chief Minister Devendra Fadnavis who can claim credit for fulfilling the quota promise.
Thursday’s judgment, written by Justice More for the bench, said that a legislation enacted by a state legislature, which is based on a report of the Commission, is backed by “empirical and contemporaneous data” and “leaves very little scope for us to interfere”.
“The statute is no doubt presumed to be Constitutionally valid and it is the legislature of the State, which would better understand the contingencies and the extraordinary circumstances and exceptional situations, and it is thus the best judge to reflect on the needs of a particular class,” it said.
The court also examined reports by previous commissions, which had studied the Maratha community, and concluded that its “erroneous exclusion” from reservation was an “extraordinary” situation that the state government had attempted to change.
It said that none of the earlier reports had empirical data and therefore could not stand the scrutiny of classifying Marathas as “not backward”. It said the MSBCC had for the first time carried out a “systematic scientific analysis” based on ground surveys, collecting data from households.
Rejecting the state’s decision to grant 16 per cent reservation, the Court said that in not accepting the Commission’s recommendations, it was imperative for the state government to record its reasons in writing. “In the absence of such an exercise undertaken by the state government, we hold that the exercise of enabling power by the State Government determining the quantum of reservation cannot be sustained and we express that the quantum/ limit fixed by the Commission is based on quantifiable data,” the court said.
The court held that while the Maratha community had sufficient representation not to warrant reservation in the political arena, that did not make it socially advanced.
“Though it is attempted to canvas before us that the Maratha community is socially advanced and instances have been cited to inform that several Chief Ministers of the State, belonged to the Maratha community, that in our opinion does not make the entire community forward or advanced,” the court said.
While the backwardness of the community was not comparable to SCs and STs, it was comparable to several other backward classes, which find place in the list of Other Backward Classes pursuant to the Mandal Commission, the court said.
The addition of 12-13 per cent Maratha quota will take the total reservation in the state to 64-65 per cent. In the Indra Sawhney case, a nine-judge bench of the Supreme Court had ruled that total reservation for backward classes could not go beyond 50 per cent.
But in Maharashtra, following the 2001 State Reservation Act, the total reservation is 52 per cent. This includes quotas for SC (13%), ST (7%), OBC (19%), Special Backward Class (2%), Vimukti Jati (3%), Nomadic Tribe B (2.5%), Nomadic Tribe C-Dhangar (3.5%) and Nomadic Tribe D-Vanjari (2%). The quotas for Nomadic Tribes and Special Backward Classes have been carved out of the total OBC quota.
Petitions on the Maratha quota were filed before the High Court by advocates Jaishri Patil, Sanjeet Shukla and Dr Uday Dhople along with others, challenging the notification published by the government on November 30, 2018. The final arguments had commenced on February 6, and the court reserved its order on March 26.
Commenting on the verdict, Shukla said: “The verdict is a national disaster unless the Supreme Court overturns it. Every state will quote this order as precedent. We will move the Supreme Court immediately.”
An advocate for Shukla, meanwhile, sought a stay on the judgment for four weeks, but the court refused the plea.
After the judgment was pronounced, senior counsel V A Thorat, appearing for the state, told the court that post-graduation admissions were completed by June 17, and as the court has reduced the reservation to 12 per cent, around four per cent of students would be affected. On this issue, the court sought a separate application, which will be decided on merits.
Speaking to The Indian Express, senior counsel Anil Sakhare, who appeared for the state, said they will move Supreme Court to challenge the reduction of quota in education and government jobs. Until then, he said, government appointments will be made as per the High Court judgment.