The Centre on Tuesday told the Supreme Court that the law passed by the Maharashtra Assembly to grant reservation to the Maratha community was a constitutional one, Live Law reported. The Centre gave its submission on the matter to a five-judge bench that was hearing a batch of petitions challenging the the validity of the Maratha quota.
The petitioners have argued that the provision for 12% reservation for Marathas in jobs and 13% in admissions would breach the ceiling of a 50% quota limit imposed by the Supreme Court in a landmark verdict in 1992.
In Tuesday’s hearing, Solicitor General Tushar Mehta, appearing for the Centre, said that the 102nd Amendment to the Constitution does not strip a state of its powers to declare its list of Socially and Educationally Backward Classes, Bar and Bench reported.
The court had sought the view of the Centre on the ambit of the 102nd Constitution Amendment, which had in August 2018, provided constitutional status to the National Commission for Backward Classes. The NCBC was earlier a statutory body under the Ministry of Social Justice and Empowerment.
“102nd amendment would not denude the States of power to declare socially and educationally backward classes,” Mehta said, while mentioning that he was adopting the submissions of Attorney General KK Venugopal. “It is an enabling provision that enables the Centre.”
The bench, however, asked Mehta why no notification of Socially and Educationally Backward Classes has been notified by the Centre under Article 342A of the Constitution, since the amendment was passed. Following the 102nd Amendment, Article 342A empowers the president, in consultation with governor, to specify the SEBCs of respective states and Union Territories.
“Does it mean there is a blank slate as of now?” the court asked Mehta. “Can you make it a dead letter [Article 342A] by not issuing a notification for all times to come?”
The court also said that if Article 342A was added to notify further lists of Socially and Educationally Backward Classes, then the existing ones need to be incorporated into the 102nd Amendment.
To this, Mehta replied that the existing list continues to be the same as before the amendment. It added that the court’s concern of adding existing Socially and Educationally Backward Classes to the amendment will have to be considered when it takes up petitions challenging it, Bar and Bench reported. The court told Mehta that it will hear the Centre’s submission when a pending writ petition on that matter is taken up.
The case so far
On September 9 last year, the Supreme Court had stayed reservation in educational institutions and government jobs provided to the Maratha community under the Socially and Educationally Backward Classes Act, 2018. The Maratha community roughly forms one-third of the state population.
The three judge-bench headed by Justice L Nageswara Rao referred the matter to Chief Justice SA Bobde to constitute a larger bench and examine the validity of such a quota.
Then on March 8, the Supreme Court had issued a notice to all states, seeking their response on whether reservation could be allowed beyond the 50% ceiling. At least six states have so far shown willingness to increase the cap on reservation.
Meanwhile during the hearing of the current petitions, the five-judge bench of Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, on Friday sought to know for how long the system of reservations in the education and jobs sector will continue.
In 2018, the then Devendra Fadnavis-led government in Maharashtra had approved 16% reservation for the Marathas in jobs and education after statewide protests. However, the Bombay High Court, while upholding the constitutional validity of the law, stated that the 16% reservation was not justifiable. It directed the state government to reduce the quota to 12%-13% as per the recommendations of the State Backward Classes Commission. The court also maintained that 50% cap on total reservations imposed by the Supreme Court could be exceeded in exceptional circumstances.