February 10, 2019:
Article 16 (4) of the Constitution empowered the government to go beyond the reservation cap.
Article 16 (4) of the Constitution allows the sta e to grant reservations beyond the 50% cap, the Bombay high court (HC) said on Thursday, while hearing a plea challenging the 16% quota for Maratha community, which brings the reservation percentage in Maharashtra to 68. The arguments against the quota will continue on Friday, while those in support are scheduled for February 20, 21 and 22.
Senior counsel Arvind Datar, appearing for petitioner Sanjeet Shukla, told a bench of justices Ranjit More and Bharati Dangre that proper procedure was not followed while granting the reservation under the Socially and Educationally Backward Class (SEBC) Act, 2018.
Maharashtra State Reservation (of seats for Admission in Educational Institutions in the State and for Appointments or Posts in the Public Services under the State) for Educationally and Socially Backward Category (ESBC) Ordinance, 2014
“The 102nd amendment to the Constitution stipulates that while state commissions could make recommendations, the state has to send them to the National Commission for Backward Classes which would then send it to the President. The reservation is valid only after the President issues a notification. The state did not follow the procedure, making the quota invalid,” he said.
Datar rebutted the claim made by the state in its affidavit that the 2018 SEBC Act was promulgated from parts of the 2014 Act that were still in force. He submitted: “The state’s claim was only to circumvent the 102nd amendment which does not allow a new Act. By enacting SEBC, the state had not only violated court orders, but also raised questions of whose authority [court or legislature’s] should prevail.”
The HC, however, said the Article 16 (4) empowered the government to go beyond the reservation cap.
Shreehari Aney, who argued next, for petitioner Dr Uday Dhople, challenged the classification of Marathas as backward.
He submitted that as per the Constitution, reservation was restricted to ST, SC and OBC. These reservations were based on the backwardness of these castes and the Supreme Court had confirmed that it was a substantive reservation needed for upliftment of people belonging to the castes. However after the 102nd and 103rd amendments, a new category was introduced which was based on social, economic and educational backwardness, he said.
Referring to Article 15 (4), (5) and Article 16 (4) under which the fourth category was carved out, Aney said the state could introduce certain provisions for SEBC for their advancement, but after they become advanced, there is no need for the provisions.
“The state as per its whims and fancies and for political exigencies stratify the society and destroy the basic structure of the Constitution,” submitted Aney.
He also pointed to the unconstitutional nature of the 10% reservation for the Economically Weaker Section of the society that was introduced by the Centre.