Are we competent to evaluate historical evidence? HC asks petitioner seeking Kunbi status for Marathas

Bombay HC questions competence to declare all Marathas as Kunbis, citing historical evidence. PIL seeks recognition for OBC benefits, court seeks clarity on legal duty and statutory mechanism.

MUMBAI: The Bombay high court (HC), which was hearing a public interest litigation (PIL) on Thursday urging them to instruct the state government to declare all Marathas as Kunbis, asked the petitioner whether it was competent to evaluate several historical and cultural evidence in order to do so.

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The division bench, comprising chief justice Devendra Upadhyaya and justice Amit Borkar, raised this issue while hearing the PIL filed by Sunil Shatrugan Vyaware. “Can the court take such a declaration upon itself? Are we competent? There may be a demand or aspiration that they may declare it as a scheduled class. But a mechanism is given to see who belongs to that class. There may be a constitutional provision. Can we take upon ourselves the study that because of this historical evidence..…because of cultural and social perception? Should we declare?” asked the bench.

The PIL claimed that Marathas and Kunbis have deep historical, social, and economic connections, which justifies recognising all Marathas as Kunbis. The petitioner argued that both communities have shared identities, farming jobs, and cultural traditions, criticising the current laws for excluding Marathas from Kunbi benefits under the OBC category.

The petition pointed to a Maharashtra government notice from January 27, 2024, which acknowledges that Marathas with Kunbi caste records are considered Kunbis. This notice showed the connection between these communities, supporting the case for unified recognition. The petitioner emphasised the shared cultural practices, festivals, social customs, and administrative records that often classify Marathas and Kunbis together, arguing that these factors show their integrated identity.

The petitioner wants a writ of Mandamus directing the state to declare all Marathas as Kunbis for caste classification and OBC benefits. Additionally, the petitioner seeks a writ of Mandamus for the immediate issuance of Kunbi caste certificates to all Marathas, allowing them to access reservation benefits. The petitioner also calls for a thorough review and update of the caste classification system in Maharashtra to reflect the historical and socio-economic realities of the Maratha-Kunbi communities. As an interim relief, the petitioner requests the provisional issuance of Kunbi caste certificates to Marathas, pending the final outcome of the petition, and asks that the state be prevented from taking any adverse action against Marathas seeking Kunbi caste certificates or related benefits.

During Thursday’s hearing, the petitioner’s lawyer referred to previous Supreme Court rulings on Maratha reservation, noting that the Gaikwad Commission’s claim that all Marathas are Kunbis was not upheld. In response, the bench sought clarity on any legal obligation placed on the state to issue a mandamus.

“Tell us for seeking such declaratory relief which writ are you praying for? How can a mandamus be issued? Mandamus is for enforcing statutory legal duty. Where is the legal duty cast on the state? We need to understand the scope of 226. What is the statutory mechanism to declare a community as OBC? There are constitutional provisions and presidential orders for SC and ST. What’s there for OBC?” asked the court.

The court further inquired, “You want a declaration that the entire Maratha community is backward? What is the statutory mechanism available for declaration? For Scheduled Castes and Scheduled Tribes, there are presidential orders. What is it for OBCs? What’s the statutory prescription?”

The petitioner’s lawyer referred to Article 342A (3) of the Constitution, arguing that the state has the authority to recommend the inclusion and exclusion of backward classes. Advocate general Birendra Saraf pointed out that this provision was introduced following a Supreme Court judgement and subsequent constitutional amendment.

The bench then questioned whether a government resolution would be enough for this purpose or if state legislation was needed. The case was adjourned to July 31, giving the petitioner’s lawyer time to research the court’s questions.