The Supreme Court’s Constitution bench on Wednesday delivered a mixed verdict on reservations, which is likely to invite a backlash both from the political class and disgruntled litigants. The court’s ruling deals with three crucial issues and on two of them, it seems to have muddied the waters.Why Marathas don’t merit reservationsFirst, on the issue of whether Marathas deserve reservations at all, the bench’s unanimous conclusion – that they don’t – carries conviction. The Marathas are a dominant forward class and are in the mainstream of national life, the bench found.The Maratha community has adequate representation in public service which is apparent from data collected by the M.G. Gaikwad commission, based on whose report the state legislature enacted the law to reserve 16% reservation in government jobs and education for the Marathas over and above the 50% ceiling limit fixed by the Supreme Court in Indra Sawhney case.The state government submitted that inclusion of Maratha community in the already existing OBC (Other Backward Class) community for whom 19% reservation is allowed shall have adverse effect on the OBCs who are already enjoying the reservation, hence, a decision was taken to grant separate reservation.The bench, however, found that more than 33% of the open category Grade A posts in state government services has been bagged by Marathas.In Grade B, Marathas filled 29.03% posts, in Grade C 37.06% and in Grade D 36.53%. The above representation of Marathas in public services, therefore, is adequate and satisfactory, the bench held. The constitutional pre-condition that the backward class is not adequately represented is not fulfilled.The bench found that the commission committed an error in computing the percentage adding posts available for open category as well as posts available for reserved categories. The representation of Marathas has to be against open category posts, hence, their percentage has to be determined as compared to total open category filled posts, and the representation of Marathas in most of the grades is above 30%. Because of this error, the commission found their representation in services as inadequate. Moreover, the commission examined the entitlement under Article 16(4) on the concept of proportionate representation in the state services which is a fundamental error committed by the commission. The Constitution relies on the concept of “adequate” representation and not proportionate representation to justify reservations, the bench pointed out.The bench also criticised the commission for not focussing on comparative analysis as to what happened in the recent years that Marathas have become backward from the position of forward class, as they were found to be in by several commissions earlier.‘When a community is able to compete with open category candidates and obtain a substantial number of seats (about 30%)…’ – this was a relevant fact to be noticed while considering the social and educational backwardness of the community, the bench held. The data obtained by the commission itself indicated that students of the Maratha community have succeeded in open competition and got admissions in all the streams including engineering, medical, other graduation and post-graduation courses, and their percentage is not negligible.Maratha Kranti Morcha activists at a protest demanding reservation in jobs. Photo: PTI/FileOut of 161 posts filled by open category candidates from the state, there are 25 IAS from the Maratha community. Out of 140 posts filled from open category, 39 IPS belong to the Maratha community. In the IFS, the total number of posts filled from the state is 97. Of these, 87 are from the open category, out of which 16 are Marathas.Out of the posts filled for open category candidates, the percentages of IAS, IPS and IFS from the Maratha community comes to 15.52, 27.85 and 17.97, respectively, which is a “substantial representation of Marathas in prestigious central services”, the court noted.The bench also found sufficient number of Marathas in different universities in the state occupying posts of heads of departments, professors, associate professors and assistant professors. The bench held that in the higher academic posts and posts like IAS, IPS and IFS, there cannot be any basis to contend that since the Maratha community is not occupying posts according to their proportion of population, they are socially and educationally backward classes.Also read: Reservations Have Become a Soft Option, but Presented as Panacea for Ills That Beset IndiaBreaching of 50% ruleIf the Marathas don’t deserve reservations at all, there is no point in examining whether they merited reservations over and above the 50% ceiling fixed by the nine-judge bench in Indra Sawhney case. But the bench went to great lengths to justify denial of reservations to Marathas on the ground that they don’t fulfil the requirement of “extraordinary situation” as articulated in Indra Sawhney.The bench found the greatest common measure of agreement in six separate judgments delivered in Indra Sawhney that reservation under Article 16(4) should not exceed 50%. For exceeding reservation beyond 50% extraordinary circumstance as indicated in paragraph 810 of the judgment of Justice Jeevan Reddy should exist, for which extreme caution is to be exercised; the bench, therefore, found no good ground to revisit Indra Sawhney or to refer the same to a larger bench on the above ground as urged.“To change the 50% limit is to have a society which is not founded on equality but based on caste rule,” the main judgment authored by Justice Ashok Bhushan held, without elaborating.There can be no denial that law should change with the changing time and changing needs of the society; but the bench was not persuaded that in view of the needs of the society which are changing, the 50% rule should be given up.Providing reservation for advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of backward class. The state ought to bring other measures including providing educational facilities to the members of the backward class free of cost, giving concession in fee, providing opportunities for skill development to enable the candidates from the backward class to be self-reliant, the bench reasoned. Why the bench felt compelled to offer this advice in the context of reservation for Marathas, whom it found socially advanced, is not clear.To increase the requirement of providing education including higher education to more and more sections of society other means and measures have to be forged. In view of the privatisation and liberalisation of the economy, public employment is not sufficient to cater to the needs of all, the bench reasoned.The cap on percentage is to achieve the principle of equality and with the object to strike a balance which cannot be said to be arbitrary and unreasonable. The judgment of Indra Sawhney has been followed for more than quarter century without there being any doubt raised in any of the judgments about the 50% rule, which has been repeatedly followed, the bench suggested.When the constitution bench in Indra Sawhney held that 50% is the upper limit of reservation under Article 16(4) it is the law which is binding under Article 14 (1) and to be implemented.Kapil Sibal, who argued on behalf of Jharkhand government, submitted that the judgment of Indra Sawhney is shackled to the legislature in enacting the law. The bench held that when the law is laid down by the Supreme Court, all authorities including legislature and executive are bound by the said law.The respondents argued that since there is no indication in Articles 15 and 16 that certain posts cannot be reserved; therefore, no such exclusion could have been made. Yet in paragraph 838 of Indra Sawhney the bench had held that certain posts where reservations are not conducive in public interest and the national interest (in super specialities and higher technical and in disciplines like atomic research etc.), reservations could not be made.The bench on Wednesday did not find Maharashtra government’s argument (through senior counsel, Mukul Rohatgi) that Indra Sawhney need not be applied in reference to Article 15 convincing.On the 10% reservation as mandated by 103rd constitutional amendment, which has been referred to a larger bench in Janhit Abhiyan v Union of India, the bench refrained itself from making any observation regarding effect and consequence of 103rd constitutional amendment. This left a lingering question unanswered: what if the bench in Janhit Abhiyan felt compelled to reopen the question of 50% ceiling fixed by Indra Sawhney by referring it to a 11-judge bench, the outcome of the Wednesday’s judgment in Maratha reservation case may well have to be reconsidered all over again. Does it not make sense that the Janhit Abhiyan bench also dealt with the Maratha reservation case?Rohatgi argued that in paragraph 810 of Indra Sawhney, certain “extraordinary circumstances” have been referred to which cannot be said to be cast in stone. The circumstances referred to, namely, of far-flung and remote areas cannot be cast in stone and forever unchanging, he had submitted. He said that the same was given only by way of example and cannot be considered exhaustive. Moreover, he suggested that it is a geographical test, which may not apply in every state.While agreeing with him that the extraordinary situations indicated in paragraph 810 were only illustrative and not exhaustive, the bench disagreed that it provided only a geographical test. The use of the expression “on being out of the mainstream of national life” is a social test, which also needs to be fulfilled for a case to be covered by exception, the bench held.Paragraph 810, however, gives an indication as to which may fit in an extraordinary situation, the bench said. In K. Krishna Murthy and others v Union of India (2010), the Constitution bench applied 50% ceiling in vertical reservation in favour of SC/ST/OBC in the context of local self-government. However, it created an exception in order to safeguard the interest of STs located in the Scheduled Area.Judgment of Indra Sawhney has stood the test of time and has never been doubted. On the clear principle of stare decisis, judgment of Indra Sawhney neither needed to be revisited nor referred to the larger bench of this court, the bench held.The bench found that the Gaikwad commission erred in interpreting the Supreme Court’s judgment in M. Nagaraj that on the quantifiable data, the ceiling of 50% can be breached. There is no such ratio laid down by the Supreme Court in M. Nagaraj, the bench pointed out. The entire basis of the commission to exceed the 50% limit is that since the population of the backward class is between 80-85%, reservation to them within the ceiling of 50% will be injustice to them.The Marathas are in the mainstream of the national life; therefore, they do not satisfy the extraordinary situations as indicated in paragraph 810 of Indra Sawhney. It is not even disputed that Marathas are a politically dominant caste, the bench explained.The Bombay high court held that the commission had culled out an extraordinary situation in that it found the Marathas constituted 30% within the 85% backward classes (BCs).Disagreeing with this approach, the bench held: “Both commission and the high court fell in error in accepting the above circumstance as extraordinary circumstance for exceeding the 50% limit. Since the state has formed the opinion on the basis of the report of the commission, both are unsustainable,” the bench ruled.The state’s legislative or any executive action passed in violation of fundamental rights is ultra vires to the Constitution. The 50% ceiling limit for reservation laid down by Indra Sawhney is on the basis of principle of equality as enshrined in Article 16, the bench held.“There is a presumption unless rebutted that all communities and castes have marched towards advancement. When more people aspire for backwardness instead of forwardness, the country itself stagnates which situation is not in accord with constitutional objectives”, the bench pontificated, as if it was concerned with the question of reservation in principle.Also read: Does ‘Merit’ Have a Caste?102nd amendment It is the split verdict on the meaning of 102nd amendment that the bench on Wednesday was the least convincing. The majority judges, Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, while agreeing with Justices Ashok Bhushan and S. Abdul Nazeer on the question of breaching of 50% ceiling, disagreed on whether the 102nd amendment deprived the states the power to identify backward classes.Justice Bhushan and Nazeer agreed with the Bombay high court that 102nd amendment does not take away the legislative competence of Maharashtra legislature.Members of the Maratha community celebrate the Bombay high court’s judgment. Photo: PTIHowever, Justices Nageswara Rao, Hemant Gupta and Ravindra Bhat held that the 102nd amendment deprives the state legislature of its power to enact a legislation determining the SEBCs (socially and economically backward classes) and conferring the benefits on the community under its enabling power. The final say in regard to inclusion or exclusion (or modification of lists) of SEBCs is firstly with the president, and thereafter, in case of modification or exclusion from the lists initially published, with the parliament.The National Commission for Backward Classes (NCBC), established under Article 338B, shall be the only body to whom both the Centre and the states have to turn, in all matters of policy, which would include identification of castes or communities as backward classes. The new commission (NCBC) is expected to play a decisive role in the preparation of lists, which the Constitution set apart as one list, deemed to be the list of SEBCs for the purposes of the Constitution in relation to every state and Union Territory, the majority judges held.After the 102nd Constitution Amendment, the states have no power to identify SEBCs. The amendment had brought change in the regime already in existence for BCs to fall in line with Articles 341 and 342 of the Constitution. In view of Article 342A, the SEBCs are those who are specified by the president by public notification for the purposes of a state or Union Territory under sub-clause (1) of Article 342A. The parliament inserted phrase “central list” in clause (2) of Article 342A only to emphasise the fact that after the 102nd amendment, the only list that shall be drawn for the purposes of SEBCs is the central list drawn by the president, Justice Bhat reasoned in his separate judgment, with which both Justices Rao and Gupta concurred.The appellants contended that Maharashtra legislature had no competence to enact 2018 legislation after 102nd amendment. Counsel for Maharashtra and other states, however, contended that under Articles 15(4) and 16(4), the union and the states have co-equal powers to advance the interest of the SEBCs; therefore, any exercise of power by the Union cannot encroach upon the power of the state to identify SEBCs. If the 102nd Constitution amendment is interpreted in the manner as appellants are interpreting, the constitutional amendment shall be violative of the federal structure and shall be unconstitutional, Justices Bhushan and Nazeer held.The Centre submitted that Article 342A covers the central government list alone. Its plea to rely on external aids like debates in parliament, to interpret the law, in view of the uncertainty, was not convincing to the majority judges, who preferred to understand the law literally.Justice Bhat, however, held that the states continue to have the power to make suggestions and collect data – if necessary, through statutory commissions, for making recommendations towards inclusion or exclusion of castes and communities to the president on the aid and advice of the union council of ministers under Article 342A. This will accord with the spirit of the Constitution under Article 338B and the principle of cooperative federalism which guides the interpretation of the Constitution, he suggested.The president has not thus far prepared and published a list under Article 342A(1). Only the president, that is, the central government has the power of ultimately identifying the classes and castes as SEBCs. Though the amendment came into force more than two years ago, as yet no list has been notified under 342A. The president should after due consultation with the NCBC, set up under Article 338B expeditiously publish a comprehensive list under 342A(1); till such time, the SEBC lists prepared by the states would continue to hold the field, Justice Bhat held. These directions are given under Article 142 having regard to the drastic consequences which would flow if it is held that all state lists would cease to operate, he reasoned. The consequences of Article 342A would then be so severe as to leave a vacuum with respect to SEBCs’ entitlement to claim benefits under Articles 15 and 16 of the Constitution, Justice Bhat suggested.The power of identification of SEBCs, hitherto exercised by the states and now shifted to the domain of the president (and for its modification, to parliament) by virtue of Article 342A does not in any manner violate the essential features or basic structure of the Constitution; the 102nd amendment is also not contrary to or violative of proviso to Article 368 (2) of the Constitution which requires ratification by majority of states, if the amendment pertains to specified provisions which will have impact on the states’ rights, Justice Bhat held.Justice Bhat’s judgment is likely to erode states’ powers under the federal structure, although the Centre, which was responsible for the amendment, is opposed to such an interpretation. For the states, the conclusion of the majority judges must have been a bolt from the blue, as there is no clear articulation of the merits of such an interpretation, except that a reliance on literal reading of the amendment is preferable to reliance on external aids.No wonder, parliament will seize the first opportunity to undo Justice Bhat’s judgment by making Article 342A clearer than what it is today. The political class has already voiced its serious concern over the impact of the judgment for federalism.
