The Supreme Court on Thursday said that all reservations may end one day and only a quota based on economic criteria may remain, but clarified that these were matters of government policy, reported Live Law.
“This may be a beginning, all reservations may go and only [quota based on] EWS [Economically Weaker Sections] may remain,” a five-judge bench said. “But these are policy matters.”
The Supreme Court is hearing a batch of petitions challenging the validity of the Maharashtra State Reservation for Socially and Educationally Backward Classes Act. The petitioners have argued that the provision for 12% reservation jobs and 13% in admissions in the law would breach the ceiling of 50% reserved seats imposed by the Supreme Court itself in a landmark verdict in 1992 in the Indra Sawhney case. The Supreme Court is also looking at the verdict that capped the maximum quota limit at 50%, according to The Indian Express.
At the hearing, the Supreme Court’s observation came on the contention of advocate Shriram P Pingle, appearing for the Socially and Educationally Backward Classes Welfare Association. He argued that caste-based quota was being politicised using the Indra Sawhney judgement as grounds for extending reservations.
“Endeavour should be made to remove caste-based reservations in a phased-manner,” said Pingle. The advocate also told the court that 30 years have passed since the Indra Sawhney case and that if a mistake was made then, generations of people would suffer. “Since this case has a larger magnitude on the social life of the country, it may be appropriate to consider all the cases which are pending and then take a holistic view.” said Pingle. “Over-reservation is anti-reservation.”
Senior Advocate Shyam Divan, who was representing the petitioners opposing the Maratha quota law, said that there was no need to reconsider the Sawhney verdict. “We are more equal now than we were 70 years ago,” Divan submitted. “The focus needs to be on other forms of affirmative action. If the 50% limit is breached there will be political pressure not to reduce reservations. Once it’s breached, it will become impossible to backslide.”
He argued that Constitutions and constitutionalism were about balance. Divan said that the essence of the 50% cap is to balance the aspirations of different elements of society and the interests of those who were not gaining from reservations.
Divan concluded that the Act in question had to be struck down for breaching the 50% limit and for having no justification for doing it.
The bench had earlier observed that the 50% ceiling “is a manifestation of the right to equality” and wondered what would happen to the concept of equality if the cap is removed.
The matter will again be taken up on Friday. Attorney General KK Venugopal and Solicitor-General Tushar Mehta will reply to these submissions.
In its hearing on Tuesday, the Centre had told the Supreme Court that the law passed by the Maharashtra Assembly to grant reservation to the Maratha community was a constitutional one. Solicitor General Tushar Mehta, appearing for the Centre, had 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.
The court had sought the view of the Centre on the ambit of the 102nd Constitution Amendment, which had provided in August 2018 the constitutional status to the National Commission for Backward Classes. The NCBC was earlier a statutory body under the Ministry of Social Justice and Empowerment.
The Maratha quota case
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 this year, 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, had last week 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.