SCO Explains: Maratha Reservations Litigation History (1/4)

This is the first of a 4-part series on the Maratha Reservations Hearings, (recorded in April prior to the pronouncement of the judgment). The other parts look at the rationale and the development of the 50% limit on reservations, the arguments on the limit in the case itself and the interpretation of the 102nd Amendment.

Transcript

The Supreme Court read down the provision granting reservations for Marathas on 5th May 2021. In doing so, it affirmed the 50% rule and held that States no longer have the power to identify socially and educationally backward classes after the 102nd Amendment Act, 2018.

In this four-part series of SCO Explains, we look at the hearings and the arguments in the Maratha Reservations case and place them in context. In this first clip, we look at the litigation history of the case before it came to the Supreme Court. These episodes were recorded in April, prior to the pronouncement of the judgment.

So, what we’re going to do today is basically unpack what the legal arguments were and try to examine what possible outcomes or what possible choices the court has in resolving the issues that this case throws up. Before we dive deep into the arguments themselves, we thought that it was important for us to address a couple of issues.

The first thing we want to spend some time talking about the context. How did this case come up and how did it travel to the Supreme Court? So, in 2014, a few months before Prithviraj Chauhan’s term ended as the Chief Minister of Maharashtra, he introduced an ordinance to grant Marathas 16% reservation in public employment and education.

What he did through this ordinance was to identify and categorize Marathas as a socially and educationally backward community. Right after the ordinance was passed, it was obviously challenged before though Bombay High Court. So, with this 16% reservation, the overall reservation in Maharashtra exceeded the 50% limit that we generally understand to be the limit of reservation.

It pushed reservation in education to 64% and it pushed the reservation in employment to 65%. So the Bombay high court stayed the ordinance. This ordinance wasn’t enough for Chauhan to get re-elected. He lost the elections and we have a new government, the Fadnavis government.

So, his government introduced the SEBC Act in 2014. Again, with the same mandate. 16% reservation in education and public employment. The Bombay High Court again stayed the Act. So now for novice government wanted to kind of give teeth to the demand of reservation. Rather than it just being an executive action, what he did was to set up a Commission called the Gaikwad Commission, headed by GR Gaikwad.

It was a 11 member Commission whose mandate was to determine if Maratha were indeed backwards, socially and educationally. And if so, do they, do they need reservation for the social emancipation? The Gaikwad Commission conducted ground survey, and it basically held that Marathas are indeed backward and they need reservation. But they suggested or 12% reservation in education and 13% reservation in employment. So, what the Fadnavis government did now is in 2018, based on the recommendations, it passed the Act again. But again, it kept the quantum as 16%. So, throughout all the attempts to different governments, what we see is they all want to give 16% reservation for Marathas in education and employment.

So again, this act was naturally challenged before the Bombay High Court and the High Court heard this case for about 40 days on both sides. And what it did is it upheld the constitutionality of the Act, but it reduced the 16% reservation to 12% in education and 13% in employment to be in line with the Gaikwad recommendations.

So, what it said was a State government had the prerogative to come up with reservation, to identify categories of communities who deserve reservation. But it needed to base it on the recommendations of the Commission. So now what we have is people, especially a lot of students, medical students, other students who have filed an appeal before the Supreme Court through a special leave petition challenging the Bombay High Court judgment.

Essentially what these petitioners are saying is that the act is unconstitutional because in no way can reservations exceed 50% limit. So, the 3-judge bench initially heard the case for a couple of days. The Justices were, were out Nageswara Rao, Hemant [Gupta] and Ravindra Bhat. But when they, the Supreme Court, initially heard the case- the three-judge bench initially heard the case.

The moot question was whether there existed a need to refer this case to a larger bench because what the respondents- here, the respondents are the State, basically the State government who want reservation to be above 50%. So essentially what they argued was that this Constitutional challenge to SEBC act poses questions, which this 3-judge bench cannot tackle. Questions, on reservation, questions that test the limit of reservations, questions which would require re-examination of the Indra Sawhney judgment, which basically lays down the 50% rule.

So they basically say, okay, you need to, you need to refer this to a larger bench. So, the 3-judge bench agreed that this case actually has some substantial questions of law, which is the test to refer any case to a larger bench, as per Article 145 of the Constitution. So, now we have the five judge bench.

You have Justices Ashok Bhushan, Abdul Nazeer, Nageswara Rao, Hemant Gupta, and Ravindra Bhat. So, this five judge bench heard this case for 10 days from March 15th to 26th.  So, this is the context behind the litigation and the case before the Supreme Court.

In the the next clip, we look at the genesis and the development of the 50% limit on reservations from the case of MR Balaji to Indra Sawhney.