The Supreme Court will consider whether states can give reservations by declaring any class as backward on their behalf, or Parliament has this right after the 102nd amendment of the constitution? While hearing the challenge to the Maratha reservation of Maharashtra, the Constitution Bench has admitted that the situation has changed after the 102nd Constitution Amendment.
Therefore, it is important to consider the validity and effect of this amendment as well. A bench of 5 judges sitting under the chairmanship of Justice Ashok Bhushan has said that the case will have an impact on all the states. Therefore, they are also being given notice. The detailed hearing will begin on March 15. It will also consider whether the decision to maintain the reservation limit up to 50 percent also needs to be rethought.
In 2018, the Maharashtra government gave Maratha class 16 percent reservation in government jobs and higher education. The basis behind this reservation was made for the report of the Maharashtra Backward Classes Commission headed by Justice NG Gaikwad. The Maratha reservation, given aside from the 27 percent reservation given to the OBC castes, violated the Supreme Court's decision in which the maximum limit of reservation was asked to be 50 percent only.
This reservation was challenged on 2 main grounds in the Bombay High Court. First, there is no proper basis behind it. It has been given only for political gain. Second, it violates the Supreme Court judgment of Indira Sawhney vs. Government of India given in 1992 to keep the total reservation up to 50 percent. In June 2019, the High Court ruled in favor of this reservation. The High Court accepted that reservation can be given to a class in exceptional circumstances. However, reservation was reduced to 13 percent in jobs and 12 percent in higher education.
The Supreme Court has put a stay on Maratha reservation for the time being. Today a 5-judge constitution bench sitting to hear the case heard Maharashtra lawyer Mukul Rohatgi, Kapil Sibal, besides Attorney General KK Venugopal and other senior lawyers. Most lawyers believed that the case was not limited to Maratha reservation only. During the hearing, the validity of the 102nd Amendment and Article 324A of the Constitution will have to be considered. After this article was added to the constitution in 2018, the process of change in the list of OBC castes has also become similar to that of the Scheduled Castes. It has been written that with the approval of Parliament, the President can change this list. It is against the right of the Legislative Assembly to create a separate list for the state.
The court issued a notice to the states, agreeing with the plea that the impact of the case fall on all the states. The court has said that these things will be considered in the detailed hearing commencing from 15 March: -
* Was there such an extraordinary situation in Maharashtra that Maratha class should be given separate reservations, beyond the prescribed limit of reservation?
* Does the 102nd Amendment of the Constitution and Article 324A violate the authority of the State Legislative Assembly? Is this amendment and paragraph valid?
* Does the Indira Sawhney judgment of 1992 need a rethink? Should the decision of the Bench of 9 judges holding 50 percent of the total reservation be sent to a larger bench for reconsideration?
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