Maratha quota case: Affirmative action is not just reservation, says SC
NEW DELHI: The Supreme Court Monday said states should take more steps to promote education and establish institutes for the upliftment of socially and educationally backward classes as "affirmative action" is not limited to just the reservation.
A five-judge Constitution bench headed by Justice Ashok Bhushan, hearing the Maratha quota case, said that several other things can be done by the states for this purpose.
"Why can't other things be done. Why not promote education and establish more institutes? Somewhere this matrix has to move beyond reservation. Affirmative action is not just reservation," observed the bench, which also comprised Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat.
Senior advocate Kapil Sibal, appearing for Jharkhand government, said this would involve issues including financial resources of the state, number of schools and teachers there.
Sibal argued that extent of reservation would differ from state to state in the country depending on the population and thus, there cannot be a "straight jacket formula" for this.
The apex court is dealing with batch of pleas challenging the validity of 2018 Maharashtra law granting reservation to Marathas in education and jobs.
The top court is also examining issues including whether the landmark 1992 judgement in Indra Sawhney case, also known as the Mandal verdict which caps quota at 50 per cent, requires a re-look by a larger bench "in the light of subsequent Constitutional amendments, judgments and changed social dynamics of the society".
During the hearing conducted through video-conferencing on Monday, senior advocate P S Patwalia, appearing for Maharashtra, referred to the protests held earlier in the state on this issue and said it was a "burning issue" there.
"It was a burning issue there (in Maharashtra)," he said, adding, "One rally had happened in Mumbai and the entire city had come to a standstill".
"This was a huge social issue in the state," Patwalia said.
The arguments in the case remained inconclusive and would resume on Tuesday.
The top court had earlier sought to know for how many generations would reservations in jobs and education continue and had raised concerns over "resultant inequality" in case the overall 50 per cent limit was to be removed.
Senior advocate Mukul Rohatgi, appearing for Maharashtra, had said that the Mandal judgement on capping the quota needed a re-look in the changed circumstances.
Rohatgi had said there were many reasons for the re-look of the Mandal judgment which was premised on the census of 1931 and moreover, the population has increased many fold and reached to 135 crore.
Attorney General K K Venugopal had last week told the apex court that the 102nd amendment to the Constitution does not deprive state legislatures to enact law determining the Socially and Educationally Backward Classes (SEBC) and conferring benefits on them.
The 102nd Constitution amendment Act of 2018 inserted Articles 338B, which deals with the structure, duties and powers of the National Commission for Backward Class (NCBC), and 342A dealing with power of the President to notify a particular caste as SEBC as also of Parliament to change the list.
The apex court is hearing a clutch of pleas challenging the Bombay High Court verdict which had upheld the grant of quota to Marathas in admissions and government jobs in the state.
It had on September 9 last year stayed the implementation of legislation and referred to a larger bench the batch of pleas challenging the validity of law, but made it clear that status of those who have availed of the benefits would not be disturbed.
The SEBC Act 2018 of Maharashtra was enacted to grant reservation to people of the Maratha community in the state in jobs and admissions.
The Bombay High Court, while upholding the law in June 2019, had held that 16 per cent reservation was not justifiable and the quota should not exceed 12 per cent in employment and 13 per cent in admissions.