CHANGING CONTOURS OF ‘EXTRAORDINARY CIRCUMSTANCES’: DILAPIDATING SOCIAL Hierarchies iN india

Introduction

The Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2018 (‘SEBC Act’), was struck down by the Supreme Court on May 5, 2021. The SEBC Act established 16 percent reservation for the Maratha community in public education and jobs, bringing the state’s overall reservation quota past the 50 percent limit set by the Court in Indra Sawhney Etc. vs Union of India And Others (‘Indra Sawhney’). 

Through this judgement, the Supreme Court has now eliminated the longstanding ambiguity regarding the constitutional validity of the breach in the reservation cap created by the SEBC Act, Gaikwad Commission Report, and the Bombay High Court judgement delivered before this verdict. In light of the same, it is crucial to understand how the Apex Court arrived at this verdict by delving into the historical background of the legislation and understanding the legislature’s intent by juxtaposing this judgment against the contrary decisions given by the Courts previously. 

Upholding the Constitutional Validity of the Constitution (One Hundred and Second Amendment) Act, 2018.

The Constitution (One Hundred and Second Amendment) Act, 2018 (‘Amendment Act’) grants the National Backward Classes Commission (‘NBC Commission’) statutory recognition. The President has the authority to alert backward classes under the Amendment Act. The Supreme Court unanimously affirmed the 102nd Amendment’s substantive validity, although there was a disagreement about whether it impacted states’ ability to recognize socially and economically backward groups (‘SEBCs’).

It was argued that no state should have the right to recognize backward classes and that each state government should have its list of SEBCs for providing quota in state government employment and education. At the same time, Parliament should only make a national list of SEBCs for applying for central government jobs.

The final say concerning the alteration of SEBC lists is first with the President. Then, in case of modification or omission from the lists originally issued, with the Parliament,” the Supreme Court ruled on 5th May. The Supreme Court recognized the NBC Commission’s authority to advise the President in some issues granted to them by Article 338B of the Constitution. In the tradition of ‘cooperative federalism,’ while the designation of SEBCs will be handled nationally, state governments will maintain the right to decide the degree of reservation and make clear policy. According to the majority opinion, the NBC Commission must issue a new list of SEBCs, both for states and the central list. The President shall publish the notification containing the list of SEBCs concerning states and union territories for the Constitution, as soon as the NBC Commission established under Article 338B of the Constitution completes its task and makes its recommendations. After going through these recommendations, the President shall publish the notification containing the list of SEBCs in relation to states and union territories as soon as possible.

As a result, the Supreme Court ruled that only the President can recognize SEBC and add it to the registry. States would only request that SEBC be added to the list, and thus the 102nd Constitutional Amendment was upheld by the court.

Juxtaposing Against the Gaikwad Commission Report and Bombay High Court Judgement; Through the Scope of ‘Extraordinary Circumstances’.

The Maharashtra State Backward Class Commission, led by Justice M.G. Gaikwad, proposed a reservation for the Marathas in its 1,035-page survey, which was submitted to the government in November 2018. Based on public meetings and grassroots discussions held by experts and institutions with over 1.93 lakh members, including people, gram panchayats, public representatives, and organizations, the Gaikwad Commission concluded that the Maratha community needed reservation. However, while recommending reservations for the community, it had not specified the percentage of reservation. Instead, it looked to the ‘exceptional circumstances’ and ‘extraordinary situations’ generated on declaring Marathas as socially and educationally backward and their consequential entitlement to the reservation benefits. The Gaikwad Commission thus, left it to the government to take an appropriate decision within the Constitutional provisions to address the emerging scenario in the State.

Based on this report, the Maharashtra legislature passed the SEBC Act on November 30, 2018, granting the Maratha Community a 16 percent quota in education and government employment, with the state government declaring them a socially and educationally backward class. On June 27, 2019, the Bombay High Court while giving legitimacy to the SEBC Act, upheld  the statutory legitimacy of the SEBC Act, but directed the government to cut it from 16 percent to 12-13 percent. 

The Indra Sawhney judgement established two significant precedents. First, it stated that a group’s “social and intellectual backwardness” qualifies them for reservation. Second, it reaffirmed the 50 percent cap on vertical quotas, claiming that it was essential to maintain “administrative efficiency”. The Court however, gave the exception of “exceptional conditions”, that would justify the 50 percent cap breach.

The Bombay High Court held that Indra Sawhney does not give any state the authority to surpass the 50 percent reservation in eligible cases. However, extraordinary circumstances justify breaching the State’s 50 percent reservation limit. The Supreme Court’s interpretation of “extraordinary circumstances” differed significantly from the Bombay High Court’s interpretation of the Indra Sawhney exception to the quota limit. Under the SEBC Act, the Supreme Court stated that “Neither the Gaikwad Commission nor the High Court has found a reason to go beyond the 50 percent Marathas quota ceiling. As a result, we conclude that there are no exceptional conditions that justify breaching the ceiling”. Therefore, the court concluded that there were no exceptional circumstances in granting separate reservations to the Maratha Community by breaching the 50% ceiling cap on the reservation, which explicitly breaches Articles 14 and 16 of the Constitution, making the enactment ultra vires.

The Court said that the evidence gathered and tabled by the Commission as stated in the study proves that Marathas are not a socially and educationally backward class, disapproving the conclusions of the Gaikwad Commission on the grounds of which Marathas were listed as SEBCs. In reality, the Marathas are a dominant forward class and are fully integrated into national life, therefore no such ‘extraordinary situation’ arises for them.

Conservative Interpretation Leading to a Progressive Outcome

While one might expect the Bombay High Court to have relied heavily on the constitutional principles upholding equality in arriving at its verdict, it did not do so. Instead, it elucidated the shortcomings of the Gaikwad Commission by delving deep into the concepts of institutional inequality. Therefore, the Supreme Court applied a conservative interpretation to restore the original intent of the Indra Sawhney judgment and reached a progressive conclusion regarding the parity of the Maratha community. The Supreme Court held that Indra Sawhney’s judgment has stood the test of time and has never been called into question by any other decision of this Court and that it was bound by it as well.

It further held that providing reservation for the advancement of any socially and educationally backward class in public services is not the only means and method for improving the welfare of the backward class and that the State should take other measures such as providing educational facilities to members of the backward class at no cost, giving fee concessions, and providing opportunities for skill development to the backward class into consideration. 

Furthermore, it was stressed that in light of the economy’s privatization and liberalization, public employment is insufficient to meet everyone’s needs and that more ways for creating opportunities for the poorer sections and backward classes to build skills for jobs outside of the public sector were required. In this context, it is constricting to note that as more citizens adhere to backwardness rather than forwardness, the nation itself stagnates, contrary to constitutional goals.

Conclusion

The Supreme Court’s judgment is a welcome one; it relies on constitutional provisions regarding affirmative action for backward communities. The Court upheld the intent behind the Indra Sawney judgment and the Amendment Act; this not only impacts the Maratha Community’s call for quota but also acts as a deterrent and an essential precedent to the increasing trend in such calls across the country (Jats in Haryana, Patidar in Gujarat and Kapus in Andhra Pradesh). The Chief Minister, however, has advised the government to follow the Shah Bano precedent, in which the central government enacted a law in Parliament to override the judgment after the Supreme Court granted the Muslim woman alimony for life amid protests against what was seen as an interference in Islamic personal laws, as an alternative to the Maratha community. Still, it would be abysmal to the idea of equality enshrined in the Constitution.

With India’s independence approaching seventy-five years, it’s time for the government to recognize that reservation policies would have little to no impact on its growth. Instead, it exacerbates social inequity especially in the context of India where an increasing number of communities are insisting that they be classified as backward. In that case, the State will not only deviate from its goal of promoting social justice and upholding the ideal of equality, but it will also derail the Constitution’s creators’ effort to establish a country “Where the world has not been broken up into fragments by narrow domestic walls,” as rightly put by Tagore.

Shobhit is a second-year law student at the Maharashtra National Law University, Mumbai. His interests include Corporate-Commercial Laws and International Arbitration.

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