Reservation has always remained a very contentious, debatable and very sensitive issue in India. India has a very long history vis-�-vis reservation. After we got Independence, State of Madras v. Champakam Dorairajan (AIR 1951 SC 226) was the first case that came up for judicial scrutiny before Supreme Court wherein the Apex Court upheld the Madras High Court judgement, which in turn had struck down the Government Order passed in 1927 in the (then) Madras Presidency. The Government Order had provided caste-based reservation in government jobs and college seats.

The Supreme Court's verdict held that providing such reservations was in violation of Article 29 (2) of the Constitution of India, 1950 and thus, it led to the first Constitutional amendment where after by virtue of Article 15, it was provided that if the State made special provisions or laws for reservations, then it cannot be challenged for being violative of Article 14.

It is indeed true that majority of the reservations have been made just before the elections, be it Central or State. Grant of reservation was viewed as one of the most viable, economical and fastest mode to uplift the socially and educationally backward classes as India after partition was faced with various difficulties which in turn place us a step closer to our Constitution�s larger objective of bringing a socio-economic revolution.

But as time passed by, now the State can look for much more useful options for achieving this goal such as granting scholarships, providing such classes a better medical and education infrastructure, schemes and so on and so forth which was also opined by Hon�ble Mr. justice Ashok Bhushan who was leading the constitutional bench of 5 judges in the case of Dr Jaishree Laxmanrao Patil v The Chief Minister and others (LL 2021 SC 243). One more reason as to why the issue of reservation is losing its relevance in today�s times is due to unprecedented high unemployment rate which is further confirmed by Labour Ministry�s data. When there is huge paucity of Government jobs, then there�s no point of talking about reservation.

Now, as the Supreme Court in the Dr.Jaishree Laxmanrao Patil (supra) also has accepted that the Maratha community isn�t a backward class rather a dominant one, so can one say that this Maratha reservation was a case of appeasement politics?
Let us first analyze the background of how this case reaches the Apex Court. On 9th July, 2014, Maharashtra promulgated an ordinance granting 16% reservation in education and public employment to the Maratha community. On 14th November, 2014, the Bombay High Court issued an interim order staying the ordinance�s implementation. A challenge to the interim order was dismissed by the Supreme Court on 18th December, 2014.

Thereafter, Maharashtra enacted the Socially and Educationally Backward Classes Act, 2014 (hereinafter �Act� for brevity). This granted 16% reservation to educationally and socially backward classes, among whom the Maratha community was counted. On 7th April, 2016 the Bombay High Court stayed the implementation of the Act due to its semblance to the ordinance.

On 4th January, 2017, the Maharashtra government issued a notification establishing the Maharashtra State Backward Class Commission. The Commission, chaired by Justice Gaikwad, recommended 12% and 13% reservation for Marathas in educational institutions and appointments in public services, respectively.

Upon the Commission�s recommendations, Maharashtra passed the Socially and Educationally Backward Classes Act, 2018 on 29 November, 2018. It exceeded the recommended quotas, granting 16% reservation for Marathas in Maharashtra�s state educational institutions and appointments to public service. The constitutional validity of the same was challenged before the Bombay High Court in the year 2018 wherein it upheld the reservation but pointed out that instead of 16% it should be reduced to 12% in education and 13%in jobs.

In 2020, the Supreme Court stayed its implementation and referred the case to Chief Justice of India for a larger bench and hence, the present case came up.

On 15th August, 2018, the Constitution (102nd Amendment) Act of 2018 was enforced whereby Articles 338B and 342A in the Constitution were introduced.

Article 338B deals with the newly established National Commission for Backward Classes (hereinafter �NCBB� for brevity)

Article 342A empowers the President to specify the socially and educationally backward communities in a State.

It says that it is for the Parliament to include a community in the Central List for socially and backward classes for grant of reservation benefits.

Since in Maratha reservation, NCBB wasn�t consulted, thus, State had no legislative competence to pass such law.

Mandal Commission in its report admitted that there were 128 castes in Maharashtra which are backward, 94 castes as most backward and Maratha was admitted as a Forward Caste. Subsequently, Khatri Commission in 1995 and later on, Bapat Commission in 2008 refused to recommend inclusion of Maratha in state OBC category.

One of several yardsticks upon which Gaikwad Commission based its report was that the majority of Marathas are leading a life of Dabbewallas and are suffering from social-injustice. Ironically, an upper-caste individual won�t eat from an untouchable but if people are eating food made up of their hands, then how come Marathas are socially backward. The Supreme Court in its judgement has held the same and also pointed out representation of Maratha community in the Government jobs such as IPS, IAS etc.

What the Supreme Court held:

• A separate reservation for the Maratha community violates Articles 14 (right to equality) and 21 (due process of law).Reservation breaching the 50% limit will create a society based on caste rule.
  The Maratha reservation of 12% and 13% (in education and jobs) had increased the overall reservation ceiling to 64% and 65%, respectively. In the Indira Sawhney v. Union of India (AIR 1993 SC 477), Supreme Court had categorically said that 50% shall be the rule, only in certain exceptional and extraordinary situations for bringing far-flung and remote areas' population into mainstream said 50% rule can be relaxed.
  
  Though, this limit of 50% may appear to be arbitrary but since it was adopted and followed by the constitutional courts over time, so it has now got Constitutional recognition.
   
• Even if Maharashtra intended to breach 50% limit, then it had to prove exceptional circumstances but for a dominant community like Marathas, it failed to prove the same.
   
• A slight difference of opinion among the judges on the bench was observed with respect to the issue as to whether after the establishment of NBCC, the States have lost their right to determine backward classes in their respective States? Hon�ble Mr. Justice S. Ravindra Bhatt took the view that though the States can identify the backward classes within their respective States but it�s the President who shall have the power to notify in consultation with the NBCC as to which class will get the reservation and to what extent and Hon�ble Mr. Justices L. Nageswara Rao and Hemant Gupta agreed to this view. However, Hon�ble Mr. justice Ashok Bhushan opined that the States are not deprived of their powers by giving Constitutional status to NBCC but this view wasn�t accepted by the majority.
   
• Though it was argued that Maratha community�s representation isn�t proportionate to their population, but the Apex Court did not accept it and held that the ground for grant of reservation is whether they are adequately represented or not.
   
• Court in a rather very emotional way noted that people now want backwardness and not forwardness so that they can get benefits of reservation.
   
• It held that the appointments made under the Maratha quota following the Bombay High Court judgment endorsing the State law will be allowed, but they would get no further benefits.
   
• Also, there will only be a single list of Socially and Educationally Backward Classes with respect to each State and Union Territory notified by the President of India, and that States can only make recommendations for inclusion or exclusion, with any subsequent change to be made only by Parliament.
   
• The Bench asked NBCC to expedite the recommendation of SEBCs so that the President can publish the notification containing the list of SEBCs in relation to States and Union Territories expeditiously.

In my view, Bombay High Court�s judgement which upheld the Maratha reservation was bad in the eyes of law as it bypassed Supreme Court�s judgement in Indira Sawhney (supra).

 In State of Rajasthan & Ors. V. Captain Gurwinder Singh & Ors. (2018 (1) SLR 385) and in Ram Singh & Ors. V. Union of India (2015 SC), reservations for Gujjar community and Jat community were quashed respectively. The then Fadnavis government in Maharashtra deliberately created Maratha as a separate class because if they would have been placed within OBC class, then a major share of the same would have been taken up by the Marathas.

If one look at the population shares in the State, then as per Mandal Commission�s report, 13% and 11% is SC-ST population respectively, 52% is OBC population and if this Maratha reservation is also added up, then it would be a whopping large share of the total population of the state of Maharashtra and thus, this shows that such reservation was totally absurd. In its survey, Jains, Sikhs, Christians, Muslims, Parsis etc. weren�t considered and hence, this survey was totally defective.

Thus, Maratha community is a dominant and forward class which the Supreme Court also upheld and hence, such reservation was unconstitutional. The Bench upheld the constitutional validity of the 102nd Constitution Amendment.