Explainer: The legal angle to the Maratha reservation row | Mumbai news - Hindustan Times

Explainer: The legal angle to the Maratha reservation row

Sep 04, 2023 08:41 PM IST

An explainer on the nearly decade-year-old case that was recently disposed of by the SC even as the Maha govt asked the top court to reconsider its verdict

The issue of reservation for Other Backward Class (OBC) persons is a hot-button issue around the country. In Maharashtra, this has seen a multi-pronged effort by OBC groups and the state to ensure that the representation of various communities that fall within the category are able to access the socio-economic benefits afforded by the state. Yet, even as the state has sought to expand the reservation net — and various communities have simultaneously applied to the state backward classes commission to be counted within the category — the courts have demanded greater rigour from the state. After the Supreme Court struck down the reservation given by the state government two years ago, the only viable option left with it is the inclusion of Marathas in the OBC category, which the castes in the existing OBC category are opposing strongly. Here are five points that explain the legal battle that the state government (irrespective of who is in power) has waged:

Members of Maratha Kranti Morcha staged a protest at the district collectorate on Saturday over the police lathi charge on those seeking reservation at Jalna on Friday. (KALPESH NUKTE/HT) PREMIUM
Members of Maratha Kranti Morcha staged a protest at the district collectorate on Saturday over the police lathi charge on those seeking reservation at Jalna on Friday. (KALPESH NUKTE/HT)

1. The ordinance: On July 9, 2014, the Maharashtra government brought an ordinance providing for 16% reservation to the Maratha community and 5% reservation to 52 Muslim communities in public employment and education.

Several petitioners including Sanjeet Shukla, an anti-reservation activist, advocate Jaishree Patil, former journalist Ketan Tirodkar, as well as other intervenors, challenged it before the Bombay high court (HC) primarily on the grounds that the ordinance exceeded the 50% limit on reservation in public employment in the state. This limit, stipulated by the Supreme Court itself, in the Indira Sawhney case, did not allow reservations to exceed more than 50%, including those that were provided to other marginalised communities, including the Scheduled Caste and Scheduled Tribes. The petitioners argued that the decision had taken the prevailing total reservation in Maharashtra from 51% to 73% which was impermissible.

2. Staying the ordinance: On November 14, 2014, the Bombay HC stayed the ordinance and, crucially, also observed that it was not open to the state government to regard the Maratha community as a “backward class” in view of clear and cogent findings recorded by the Mandal Commission (1990), by the National Commission for Backward Classes in February 2000 and July 2008 report of the Maharashtra State Backward Class Commission (Bapat Commission).

“Rather, the National Commission for Backward Classes and the Mandal Commission has concluded that the Maratha community is socially advanced and prestigious,” the bench observed while placing a stay on the benefits of reservation extended to the community in public employment as well as education. The HC also stayed the decision to provide 5% reservation in public employment to 50 of the specified Muslim communities, but allowed the benefit of 5% reservation to the communities in education.

3. Counter move by government: While the matter was pending before the HC, the state government enacted a law in 2018 and reduced the percentage of reservation provided to the Maratha community to 12% in education and 13% in public employment. In its final verdict delivered on June 27, 2019, the HC upheld the validity of 12% and 13% reservation for the Maratha community as described above.

In its final verdict, the high court concluded that the report of the MSBCC (Maharashtra State Backward Class Commission) under the Chairmanship of Justice MG Gaikwad was based on “quantifiable and contemporaneous data” and it had conclusively established social, economic and educational backwardness of the Maratha community and inadequacy of representation of the community in public employment.

The high court also approved the classification of the Maratha community as a “socially and educationally backward class (SEBC),” saying the process complied with the twin test of reasonable classification under Article 14 of the Constitution and it was permissible for the state government to provide for the reservation in view of the exceptional circumstances concerning the community.

4. Matter travels to Supreme Court: Several petitioners took the matter to the Supreme Court, which referred the issues involved to a Constitution bench. On May 5, 2021, a five-judge bench overturned the HC ruling and held that the decision to provide reservation for the Maratha community was not covered by any exceptional circumstance as contemplated under the apex court’s ruling in the Indira Sawhney case. The MG Gaikwad commission report did not make out any exceptional circumstance either, the bench held.

The SC also stated that after the 102nd amendment to the Constitution (made in 2018) only the President of India can identify a community as SEBC and the states and Union Territories can only make recommendations to that effect.

5. Review petition rejected: On June 26, the SC rejected a review petition filed by Shiv Sangram, a Maratha outfit. The Supreme Court observed that the main judgement covered many of the grounds in the review petitions, while some others were outside the scope of review. State officials said that the government was planning to file a curative petition in the Supreme Court against this judgement, but it is yet to happen.


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    Special Correspondent. I have spent over a decade covering courts in Mumbai, primarily the Bombay High Court, and including several important trials like trial of 120 accused in March 1993 Mumbai bombings, 26/11 case - trial of Ajmal Kasab.

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