New Delhi: The Supreme Court’s decision early this week to examine several important issues related to quotas in government jobs and admissions in educational institutions may lead to far-reaching changes in the country’s reservation policy, which has been in practice for the last three decades.
Among other things, the top court will hear the need to review its three-decade-old judgement that capped the quotas at 50%, also whether the 102nd Constitutional Amendment passed by the Union government infringes the rights of States to identify backward classes, and finally, it will also decide whether the Maratha quota law passed by Maharashtra is constitutional or not.
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In a separate matter, a five-judge bench will also decide the legality of the 103rd Constitutional Amendment, which enables the Centre and States to give a 10% quota to the EWS category in jobs and admissions over and above the existing reservation as it also breaches 50% cap set in the Indra Sawhney case.
Background
These issues of seminal importance have come up before the apex court as some petitioners and academicians challenged the Maratha quota law, which offered 16% government jobs and seats in educational institutes to the politically influential Maratha community in Maharashtra. In June 2019, the Bombay High Court had held the validity of the law but reduced the quantum of reservation in jobs to 13% and in admissions to 12%.
The Maharashtra State Reservation (of Seats for admission in Educational Institutions in the State and for appointments in the Public Services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 was passed by Maharashtra in November 2018.
Maratha Quota law challenged in Supreme Court
Aggrieved by the Bombay High Court order, a group of activists moved the Supreme Court in July 2019. The petitioners dubbed the law as a one-community reservation, describing it against the very tenant of equality enshrined in the constitution.
In September 2020, in its interim order, a three-judge bench of the Supreme Court led by Justice L. Nageswara Rao stayed the operation of the Maratha quota law.
What issues were before the Supreme Court
While staying the implementation of Maratha Quota Law, the Supreme Court relied on its landmark judgement passed in the Indra Sawhney vs Union of India case of 1992 in which a nine-judge constitutional bench had set the cap of 50% on a reservation in public employment and admission in educational institutions. The Constitutional bench, however, had allowed relaxation in the 50% ceiling in exceptional cases, particularly for people living in far-flung areas who have not been part of the mainstream of national life.
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In its September 2020 order, the apex court held that reservation to the Maratha community was not valid as per the rules laid down under its Indra Sawhney judgement, as Marathas are not living in far-flung areas of the State.
Validity of 102nd Constitutional Amendments
The issue of testing the validity of the two Constitutional Amendments passed by the Union government in 2018 and 2019 is also pending before the Supreme Court.
First is the validity of the 102nd Constitutional Amendment, which came into effect in August 2018. It grants constitutional status to the National Commission for Backward Classes (NCBC). The amendment inserted Articles 338-B and 342-A in the Constitution.
While Article 338-(B)(9) says both the Centre and States shall consult the Commission (NCBC) for any major policy matters, Article 342-A says that President, in consultation with Governor, may notify any classes as socially and economically backward classes.
The petitioners, who challenged the Maratha quota law in the Supreme Court, contended that after the passage of the 102nd Constitutional Amendment in August 2018, the power to include or exclude any class as a socially and economically backward class has been shifted to the President of India.
The petitioners contended that the Maratha quota law was passed by the Maharashtra government in November 2018, two months after the enactment of the 102nd Amendment in that year, therefore the State government did not have the legislative competence to include Marathas as a socially and educationally backward class.
Validity of Reservation to EWS Category
The petitioners, who challenged the legality of the Maratha quota law, also contended that the validity of the 103rd Constitutional Amendment that grants 10% reservation to the economically weaker sections also needs to be tested by the top court.
The Amendment enables the Centre to give 10% quota to the Economically Weaker Sections over and above the cap of 50% set by the Supreme Court in 1992. Some States have also implemented 10% reservation to the EWS category under this route.
While Article 15 (6) allows the Centre, and also to States, to reserve 10% quota in admission, except in minority institutions, over and above the existing reservation for other reserved categories, Article 16 (6) allows for the reservation of a maximum 10% jobs in public employment to the EWS category, which will also be an addition to the existing reservation.
The validity of the 103rd Constitutional Amendment was challenged in Janhit Abhiyan vs Union of India case in Supreme Court and it is also pending before a Constitutional Bench of the Court.
Also read: SC to hear plea against TN law granting 69% quota in jobs, admissions
Maratha Quota debate opens other issues
The petitioners in the Maratha quota law case also contended that following the enactment of the two Constitutional Amendments (number 102 and 103), the interplay between Articles 14, 15, 16, 338-B and 342-A of the Constitution has not been considered by the top court.
The Road Ahead
On Monday (March 8), the five-judge bench led by Justice Ashok Bhushan agreed to include all States in the matter and issued notices to them so that they can make their submissions before the Court. It was done as one of the issues before the Court is whether Article 342-A affects legislative competence of States to include any class as a socially and educationally backward class. The Court said the interpretation of the 102nd Amendment, which gave constitutional status to the National Commission for Backward Classes (NCBC), was of seminal importance.
The Bench also agreed to examine the demands for referring the judgement in the Indra Sawhney case to a bigger bench, having more than 9 judges, in the light of subsequent Constitutional Amendments, judgments and changed social dynamics of the society, among other things.
The five-judge bench led by Justice Ashok Bhushan is set to start hearing on March 15 and conclude the arguments on March 25.
