Reference Order Summary

In 2018, the State of Maharashtra passed the Socially and Educationally Backward Classes Act, 2018 (‘SEBC Act’) to extend reservations to the Maratha community. Specifically, the State Legislative Assembly granted Marathas 16% reservations in education and public employment.

Various litigants challenged the SEBC Act before the Bombay High Court. After 40 days of oral arguments, the High Court delivered its judgment in 2018. It upheld the Act but reduced the percentage of seats reserved for Marathas to 12% in education and 13% in public employment, as per the recommendations of the Gaikwad Committee.

Now, the case has moved to the Supreme Court. A three-judge Bench led by Justice Nageswara Rao heard Special Leave Petitions (SLPs) challenging the Bombay High Court’s judgment. One of the key legal issues was whether the State has the power to exceed the 50% reservation ceiling set by the Supreme Court in Indra Sawhney v Union of India. With the introduction of the SEBC Act, over 70% of seats in Maharashtra are reserved.

The preliminary issue that came up was regarding the need to refer this case to a larger bench, as it involved substantial questions of law around the interpretation of the Constitution. After hearing both the parties, the Court on September 9th, in its brief, non-reportable order, decided to refer the case to a larger bench. Additionally, it halted the application of the SEBC Act for educational institutions except for Post-Graduate Medical Courses.

 

Did This Case Present ‘Substantive Questions’ of Law Involving Constitutional Interpretation?

For a Supreme Court bench to refer any case to a larger bench it needs to establish that the case involved ‘a substantial question of law as to the interpretation of this Constitution‘ under Article 145 (3). The Court considered the two preliminary issues arising from this case and tested it against Article 145 (3).

The Court clarified that on the question of ‘extent of reservation’ the precedent of Indra Sawhney would unequivocally apply: in this case the Court had decided that reservations under Article 16 (4) could not surpass the 50% ceiling limit, except under ‘extraordinary circumstances’. This limit was further confirmed in M. Nagaraj v Union of India. These two form binding precedents on this issue, and there was no need to refer the question to a larger bench.

The Constitution (102nd Amendment) Act, 2018 inserted Articles 338-B and 342-A, which provide for identification of socially and educationally backward classes. The Court noted that the insertion of Articles 338-B and 342-A brought up crucial questions on the competence of the State Legislatures to determine socially and educationally backward classes. It referred this issue to a larger bench under Article 145 (3) of the Constitution.

 

Can the Court Grant Interim Relief While Referring the Case to a Larger Bench?

The Appellants had urged that SEBC Act prima facie violated the Indra Sawhney precedent and thereby requested the Court to grant an interim stay on the application of SEBC Act. While the Court generally should avoid passing interim relief in cases concerning the constitutionality of an Act, it can do so if certain criteria are met: i.e., the ex-facie unconstitutionality of the Act, balance of convenience, irreparable injury, and public interest.

The Court prima facie believed that SEBC Act violated the Indra Sawhney precedent, and that the State of Maharashtra failed to establish extraordinary circumstances that merited surpassing the 50% ceiling limit. Therefore, the Court referred this case to a larger bench, while staying the application of SEBC in all educational institutions except for Post-Graduate Medical Courses.