"Why stop at reservation? Do more to implement affirmative action:" Supreme Court in Maratha Reservation case

The Supreme Court on Monday observed that affirmative action to uplift socially and educationally backward classes (SEBCs) should move beyond reservation and should consider other methods too including increasing number of educational institutions, seats etc (Jaishri Laxmanrao Patil v. Chief Minister). .The observations were made by the Constitution Bench of the top court comprising Justices Ashok Bhushan, L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat during the hearing of the Maratha reservation case. “Why stop at reservation? Why can't other things also be done. Why not promote education, establish more institutes. Somewhere this matrix has to move beyond reservation. Affirmative action is not just reservation. There has to be something more,” said Justice Ravindra Bhat who is part of the Bench..He further said that lack of access may not be only due to caste factor but also because of limited number of seats etc which need to be addressed."It could mean there is not enough number of seats or institutions. All of them want to but there might not be enough seats," he added.The remarks were made in response to Senior Advocate Kapil Sibal’s arguments that backwardness and percentage of backward population in India differs vastly from State to State and even within States, and a common ceiling of 50 percent followed for the whole country does not take into account social realities..“Some states have very less backward population while some States have very high backward population. India is not a uniform territory. Even within a State, there are full of diversities. Concept of equality will differ from one State to another,” he said..Sibal agreed with the Bench that more needs to be done aside from reservation for upliftment of SEBCs but that is something which would fall within the policy domain of the executive and the Court should leave the same to the Central and State governments.The thrust of Sibal’s arguments on Monday was that the 1992 judgment of the Supreme Court in Indra Sawhney v. Union of India which is accepted as having laid down the 50 percent ceiling for reservations, did not actually consider the said question..“Indra Sawhney did not have anything to do with Mandal commission report. It was called upon to decide validity of a government order and there was no question of 50 percent before it. There was no such question framed and decided in Indra Sawhney on 50 percent cap,” he argued..Further, it was argued that Indra Sawhney did not examine any data regarding backwardness and no ceilings can be fixed without examining and analysing data.“Unless you have data, statistics, you can't fix percentages. And Indra Sawhney had no data. A large number of castes were picked up from State lists,” he said..Indra Sawhney, he contended, was a judgment which came during tumultuous times when there protests across the country due to the Mandal Commission recommendations.“Indra Sawhney was decided at a time when nation needed peace and tranquility. It was not a judicial exercise but a balancing act to put quiet to the tumult,” Sibal said..It was, therefore, his case that the 50 percent ceiling cannot be a hard and fast rule.“Why do we have Kendriya Vidyalaya schools. It is 100 percent for children of government servants. Nothing wrong with that. Similarly Kasturba Gandhi Balika Vidyalaya (are) for girls only, for advancement of women. Nothing wrong in that,” he said..Interestingly, Sibal also gave data regarding Gross Enrolment Ratio (GER) for different countries. GER is the ratio of population in the age group 18- 23 to the people enrolled for higher education.“GER in USA is 88 percent. India it is 27.4 percent. According to me difference between developed country and developing country is gross enrolment ratio (GER). It is not GDP or industrial production,” Sibal said..The Maratha reservation case involves challenge to the validity of the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, which extended 16 percent reservation for the Maratha community. The Bombay High Court had, in June 2019, upheld the validity of the law but reduced the quota to 12 per cent in admissions to educational institutions and 13 per cent in jobs.Appeals were filed before the Supreme Court against the High Court verdict. The top court decided to hear all States in the matter, after a question of whether the Indra Sawhney judgment should be reconsidered cropped up. This judgment puts 50 percent ceiling on the reservation permissible for backward classes..The hearing will continue on Tuesday..Read full account of Monday's hearing here. .[Read Record of Proceedings]