The Centre on Friday moved the Supreme Court seeking a review of the judgment of May 5 by the Constitution Bench which struck down Maratha reservation as envisaged by the Maharashtra Reservation for Socially and Educationally Backward Classes (SEBC) Act.

The Court had held that the 102nd Amendment empowers only the the President to identify and declare a community’s inclusion in the list of socially and educationally backward classes (SEBC) for grant of quota in jobs and admissions. And it was not in the state’s power to do so, like in the Maharashtra law.  

In its reply, the Centre said the 102nd Amendment cannot denude  the state’s power to identify and declare SEBC community, also the two provisions which were inserted did not violate the federal structure. 

The Centre sought an open court hearing in the matter. It sought the staying of findings and observations made in the verdict so that power of the states to identify and declare SEBC is not taken away in the absence of any express provision to that effect in the Constitution.

In the plea, the Centre said, “the minority of two judges including presiding judge, has expressly held that Article 342A does not have in any manner deprive States of their power and jurisdiction and competence to identify and declare the socially and educationally backward classes, which is the correct interpretation of Article 342A of the Constitution,” 

On May 5, the five-judge Constitution Bench comprising Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta, and S. Ravindra Bhat, in a 3:2 majority verdict, had struck down sections granting reservation in the Maharashtra Socially and Educationally Backward Classes Act 2018. The Apex Court had refused to refer to a larger bench the 1992 Mandal verdict that had capped reservation at 50 percent.

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In his verdict, Justice Bhat said, “By introduction of Articles 366 (26C) and 342A through the 102nd Constitution, the President alone, to the exclusion of all other authorities, is empowered to identify SEBCs and include them in a list to be published under Article 342A (1), which shall be deemed to include SEBCs in relation to each state and union territory for the purposes of the Constitution”.

“The states can, through their existing mechanisms, or even statutory commissions, can only make suggestions to the President or the Commission, for inclusion, exclusion or modification of castes or communities in the SEBC list,” he had added.

The Supreme Court on Wednesday struck down as ultra vires, the sections granting reservation in the Maharashtra Socially and Educationally Backward Classes Act 2018 (SEBC Act). (Jaishri Laxmanrao Patil Vs The Chief Minister & Ors.)

The court said that no further benefit can be claimed by anyone. The bench was delivering its order on petitions challenging the same. 

As the five-judge constitution bench of Justices Ashok Bhushan, L. Nageswara Rao, S. Abdul Nazeer, Hemant Gupta, and S. Ravindra Bhat assembled, the court said: “In this case four judgments are being delivered. With regards to questions 1, 2 and 3, all of us have given our judgment unanimously. We don’t see any substance on the argument of Mr Mukul Rohatgi, while referring to the case of Indira Sawhney.

“With regard to question 2,” added the court, “neither the Commission nor the Bombay High Court has made out any case for sealing of reservation over and above 50%. With regard to question 3 – exceeding the sealing limit above 50% -without any exceptional circumstances (this) is a violation.”

The court also made it clear that those who have been admitted in PG Medical courses till September 9, 2020 are safe and will not be impacted.

Justice Bhat said that as per Indra Swahney this does not require to be referred to larger bench. “The state government, based on Justice Gaikwad Commission, has not made out exceptional circumstance for granting Maratha reservation. The state has no power to publish their lists. Only Parliament can do that.”

The court said that the arguments in the case have laid down seminal importance for development of Constitutional law in the country.

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Numerous pleas had been filed against the Bombay High Court order upholding the Maharashtra SEBC Act, whereby an extended 16 percent reservation for Marathas in jobs and education under SEBC was reserved beyond the ceiling limit of 50% reservation in extraordinary circumstances justified by quantifiable data.