The vexed issue of reservation in matters of education and government jobs to the Maratha community now hinges on the response of the Supreme Court where the Maharashtra government has filed a curative petition. All eyes are on the outcome of this critical petition which has deep political implications.
The apex court had earlier rejected the review petition filed by the state government. Interestingly, there is no provision in the Constitution for a curative petition. There is a provision in Article 137 for review of a judgement, but none for a curative petition. This concept was generated by a division bench of the SC in Rupa Ashok Hurra vs Ashok Hurra and another. The issue before the court was whether a person aggrieved by a judgement is entitled to any relief after the dismissal of the review petition. However, Article 142 permits the court to do “complete justice" and the concept of curative petition comes from that Article.
Curative petitions are entertained only in the rarest of rare cases. In the case of J Ranga Swamy vs. Govt of Andhra Pradesh, the court made it clear that once all points urged by a petitioner are considered by the court and the review petition is rejected there is no scope for a second review. However, in the case of Rupe Ashok Hurra vs Ashok Hurra, the court noted that though due regard is to be paid to the verdict in the case of J Ranga Swamy vs Govt of Andhra Pradesh, “in the event of there being any manifest injustice would the doctrine of ex debito justitiae ( by reason of an obligation of justice) be said to be having a role to play in sheer passivity or to rise above the ordinary heights as it preaches that justice is above all. The second alternative seems to be in consonance with time and present phase of socio-economic conditions in society." When the attorney general warned that the court may be opening a Pandora's Box by entertaining a curative petition the court noted that the objection “does not seem to go well with the concept of justice as adumbrated in our Constitution."
The court further went on to observe that “True it is, that practicability of the situation needs a serious consideration more so when this Court could do without it for more than 50 years, which by no stretch of imagination can be said to be a period not so short. I feel that it necessary, however, to add that it is not that we are not concerned with the consequences of reopening the issue but the redeeming feature of our justice delivery system, as is prevalent in the country, is adherence to proper and effective administration of justice in stricto."
This is how the innovative concept of curative petition was introduced by the apex court and it is on this interpretation that the admissibility of the Maharashtra government's curative petition relies on. The million dollar question is whether the government's counsel succeeds in convincing the court that there is a need to admit the curative petition. This is a difficult proposition considering the fact that the court had given ample opportunity to urge its points.
On July 9, 2014 the government promulgated an ordinance granting 16 % reservation to Marathas. On November 14, 2014 the Bombay high court passed an interim order staying its implementation. A challenge to the interim order was rejected by the SC on December 18, 2014.
The government then enacted the Socially and Educationally Backward Classes Act, 2014, but this too was stayed by the high court due to its resemblance to the ordinance. The government then passed the Socially and Educationally Backward Classes Act in 2018. Its Constitutionally validity was challenged before the high court mainly on the ground that it violates the 50% ceiling imposed on reservations by the SC in the Indra Sawhney vs Union of India case. Even though the high court upheld the constitutionality of the Act, the Supreme Court, on appeal, rejected it on May 5, 2021 on the basis that it breached the 50% ceiling and vide the 102nd amendment to the Constitution, the states had no powers to identify backward classes.
