In a relief to the Maharashtra Government, the Bombay High Court on Wednesday refused to grant an interim stay on its new legislation granting 16 per cent reservations in education and Government jobs to the Maratha community.

Two days after Advocate Gunaratna Sadavarte filed a Public Interest Litigation (PIL)  on behalf of his client Jayashree Patil, a member of the Indian Constitutionalist Council (ICI) challenging the new Maratha Reservations Act, a HC bench of Chief Justice Naresh Patil and Justice MS Karnik briefly heard the petitioner and the state government, before adjourning the petition for a detailed hearing on December 10.

While refusing to order an interim stay on the new Maratha Reservations Act,  the HC agreed to grant a detailed hearing on all pending petitions on Maratha reservations on December 10.

The PIL, filed by Sadavarte,  says that the new Maratha Reservations – better known as the Maharashtra State (of seats for admission in educational institutions in the state and for appointments in the public services and posts under the state) for Socially and Educationally Backward Classes (SEBC) Act, 2018 — is in violation of  the 50 per cent cap imposed by the Supreme Court on reservations.

Among other things, the petition States that the Maratha community — the Kunbi-Marathas — have already been given a reservation under the Other Backward Classes (OBC) category and the additional reservations will only create a class within a class, affecting those who do not belong to any reserved category.

Opposing a stay on the new Maratha Reservation Act sought by Sadavarte, State’s counsel VA Thorat told the court that the petitioner could not seek a stay on the state legislation through a PIL.

In his argument, Thorat said that most of the pending petitions pending in the high court opposed the Maratha quota on the basis of the 2014 Act that provided for reservation to those belonging to socially backward communities in the State. However, the 2014 Act now stood repealed and the state legislature had recently ratified the new Maratha Reservation Act to cover the issue of quota for the community. "The new legislation takes care of all legal grievances that existed in the 2014 Act," Thorat told the HC bench.

After hearing both sides, the HC bench decided to combine together all the pending petitions on the issue of Maratha reservation and hear them collectively on the next date.

With the high court agreeing to a PIL challenging the Maratha Reservations Act, there is considerable apprehension in the minds of the ruling BJP, Opposition parties and Maratha community that the new reservation might get entangled in the legal complications. 

Their apprehension stems from the fact that by enacting a law granting 16 per cent reservations to Marathas, the Maharashtra Government has exceeded the 50 per cent cap on reservations imposed by the Supreme Court and in the process followed the suit of the Tamil Nadu Government.

Currently Maharashtra has 52 per cent reservations in jobs and educational institutions. Of the total 52 per cent reservations, SCs and ST communities account for 13 and 7 per cent, respectively, while OBCs have 19 per cent per cent reservations, Together, Special Backward Class and Nomadic Tribes account for 13 per cent.

The Marathas, who have now been accorded 16 per cent reservations in education and Government jobs, account for nearly 33 per cent of the total 11.25 crore population of Maharashtra.

Once the Maharashtra State SEBC Act comes into force, then the total reservations in the State will go up to 68 per cent — next only to Tamil Nadu that has 69 per cent reservations.

Though Devendra Fadnavis dispensation has not clarified as to how it would face the scrutiny of the new law in the Supreme Court, it looks like the Maharashtra Government will take the route taken by the Tamil Nadu Government under late chief minister Jayalalithaa, which achieved its objective of increasing reservations to 69 per cent by passing the Tamil Nadu Act of 1994 and adding the 1994 Act to the Ninth Schedule of the Constitution.

Article 31B of the Constitution stipulates that the legislation in the Ninth Schedule cannot be challenged in courts. However, in 2007, the Supreme Court in IR Coelho v. State of Tamil Nadu ruled that even those laws which are placed in the Ninth Schedule are subject to judicial review if the laws violate the basic structure of the Constitution. Interestingly enough, a petition challenging the Tamil Nadu Reservation policy is expected to come up for hearing before the Supreme Court in the near future.

Even for getting its Maharashtra Reservation Act 2018 included in the  Ninth Schedule of the Constitution, the BJP-led Maharashtra Government will have to involve the BJP-led Narendra Modi Government which of course will be more than willing to help the Devendra Fadnavis dispensation. But, the move will have to undergo due Constructional processes which will take time – a thing the BJP-led Maharashtra Government does not have on hand.

As a precautionary measure, the Maharashtra had on Monday filed a caveat in the Supreme Court seeking a hearing in the event of anyone challenging the new Maharashtra Reservation Act granting 16 per cent reservations to Marathas in education and jobs.

The move came three days after Maharashtra Governor C Vidyasagar Rao signed the Maratha reservation bill enacting the law. The bill had earlier been passed unanimously by both the Houses of Maharashtra on November 29. 

The caveat, filed by Advocate Nishant Katneswarkar on behalf of the Maharashtra Government in the apex court, reads thus: “No order be passed in the matter without notice to the Maharashtra Government. The caveator (Maharashtra Government) was the authorised party who issued the Maharashtra Act.”