Lohitashwa Pratap Singh
In reference to a series of Public Interest Litigation filled by Akhil Shankar Thakur, Sanjeet Shukla ,Save Democracy Foundation and Ketan Triodar before Bombay High Court challenging the two separate ordinances promulgated by the government of Maharashtra on 9 July 2014 under Maharashtra ordinance XIII of 2014 and ordinance XIV of 2014 providing for reservation of seats for admission in aided and unaided education institutes in the state and reservation in appointing posts in public services under the state. Henceforth, providing separate 16% reservation for Maratha community ESBC (Economically an educationally backwards class ) and a separate 5% reservation for special backwards category SBC-A (Special Backward Class – A) a newly created category under which 50 sub category’s amongst Muslim are specified .
The following said provision is, itself against Maharashtra Reservation Act. Of 2001 which states no provision can be over and above the reservation aggregate of 52%, as the ordinance says the provision henceforth would be of 73% reservation [16% for Marathas and 5% for Muslims].
To enlighten this situation certain constitutional provisions are also to be brought into notice Article 15(1) –states that no discrimination against any citizen on the ground only of reservation, race, cast, sex, place of birth or any of them. However article 15(4) empowers the state that nothing in the said article shall prevent the state from making special provision for the advancement of any socially and educationally backwardclass of citizen .Further in the judgment Bombay HC with reference to the law laid down by Indra Sawhney and Ashok Kumar Thakur casehas concluded that in extra ordinary situation and for extra ordinary situation and the percentage of reservation may exceed the ceiling limit of 50%,but any excess shall be justified by state government.
The question arises weather reservation approved for Marathas as ESBC and Muslims as SBC-A is needed in such a extend that it may be called as an extra ordinary situation. Further according to Mandal report 1990, National Commission for Backward class report on 25 February 2000,Report of Maharashtra state Backward class 25 July 2008 and in the light of other relevant material Maratha community cannot be regarded as a backward class rather the mandal commission concludes that Maratha community is a “Socially advance and prestigious community”
Therefor HC approved for a specific stay for the provision for 16% reservation for Maratha, as far as the reservation for Muslim is concerned there is sufficient material [Sachar committee report, Justice Ranganath Mishea committee report, Report of the Maharashtra state minority commission].Even tough the overall percentage of reservation is henceforth increased to 57% by giving reservation to Muslim, as court said in order to bring the Muslim youth into the main stream of modern education in the state, HC allowed the reservation for Muslim in education institute but HC has put a stay on Muslim reservation under public employment as highlighted by honorable high court in the cases of M. Nagaraj and Rohtas bhankar the state has no power to break the 50 % limit of reservation hence state of Maharashtra cannot be permitted to implement ordinance XIV of 2014