The article highlights the issues with the Supreme Court judgement in the Maratha reservation case.
Three findings from Maratha reservation judgement
- Recently, the Supreme Court of India declared as unconstitutional a Maharashtra law which provided for reservation to the Maratha community.
- Three primary findings emanated from the judgement-
- 1) Maratha not backward class: The Court held that the Maratha community did not constitute a socially and educationally backward class.
- 2) Breach of 50% limit: The bench said that the law was in breach of a rule previously set by the Court disallowing reservations made in excess of 50% of the total available positions.
- 3) Power of the States: The Court held that State governments had no independent power to declare a group as a backward class.
Issues with the judgement
The latter two findings run against the values of equality and federalism, which the Court has long regarded as integral to India’s democracy.
1) 50% limit does not stem from the Constitution
- Articles 16(4) and 15(4) which confer power on the government to make reservations do not contains 50% limitation.
- Reservation as an exception: Originally, however, these clauses were seen by the Supreme Court as exceptions to a broad rule of formal equality envisioned by the Constitution.
- To that end, the Court held that to allow reservation in excess of 50% would lead to an exception overriding a rule.
- Reservation as basic guarantee: Countering the reservations as an exception position, a seven-judge Bench, in State of Kerala vs N.M. Thomas (1975), held that a programme of reservation was inherent in the Constitution’s basic guarantee of equal treatment.
- This judgment held that affirmative action by the state was compelled by an objective of attaining substantive equality.
- With this judgement the rule requiring that reservations stay under 50% ought to have been deemed incongruous.
- But when the Court sat as a nine-judge Bench in Indra Sawhney vs Union of India (1992) it sustained the 50% limit.
- The majority on the Bench ruled, on the one hand, that N.M. Thomas was correct in seeing reservations as embedded in a constitutional vision of substantive equality.
- On the other hand, the bench accepted that reservation made in excess of 50%, barring exceptional circumstances, was harmful to that very vision.
2) Interpretation of 102nd Amendment curtails the powers of the State governments to declare groups as backward
- After Indra Sawhney judgement, the determination of backward classes was made by the National Commission for the Backward Classes, at the level of the Centre, and by regional commissions at the level of the State governments.
- This division in power, gave States autonomy to classify groups as backward.
- In contrast, the power to prepare lists of Scheduled Castes and Scheduled Tribes, vested solely with the Union government.
- The 102nd Amendment (2018), introduced Article 342A.
- Article 342A stipulated that the President of India may, after consultation with the State government, notify groups of persons within such a State who are deemed to be socially and educationally backward.
- Any such “Central List”, the clause clarified, could only be altered by Parliament.
- Article 366(26C) was also added, and “socially and educationally backward classes” was defined as “such backward classes as are so deemed under Article 342A for the purposes of this Constitution”.
- In interpreting these changes, a majority in the Maratha reservation judgement concluded that the power for determination of other backward classes rests solely with the Centre.
How this interpretation goes against the federalism
- This interpretation of 102nd Amendment altogether dispossess States from exercising a time-honoured authority.
- But yet the amendment, in the Court’s belief, did not violate the Constitution’s basic structure.
- This was because, according to the majority, the alterations neither took away “the very essence of federalism” nor denuded the States of their effective power to legislate.
- But divesting states of power this critical, to classify groups as backward, entitling many communities to protection under Articles 15(4) and 16(4) is offensive to the “essence” of federalism.
- The changes, as interpreted by the Court, directly impede the ability of States to secure just social order.
Consider the question “What are the implications for the States of the interpretation of the 102nd Amendment by the Supreme Court in the Maratha reservation case?”
Conclusion
It is imperative that Parliament amend the Constitution and grants to States an express power to determine backwardness. Any other result will offend the delicate balance at the heart of Indian federalism.