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Synopsis

The Bombay High Court on Thursday questioned the petitioner whether it was competent to evaluate historical evidence and declare all Marathas as Kunbi and issue them Kunbi certificates.

The division bench, comprising Chief Justice Devendra Upadhyaya and Justice Amit Borkar, raised this issue while hearing a Public Interest Litigation (PIL) filed by Sunil Shatrugan Vyaware. The PIL seeks to direct the state to declare all Marathas as Kunbi, not just those with documented linkages to the Kunbi community.

“If they are not recognizing a caste that can be considered. But such declaration…can the court take upon itself? Are we competent? There may be demand or aspiration that they maybe declare as a scheduled class. But a mechanism is given to see who belongs to that class. There may be constitution prov. Can we take upon ourselves the study that because of this historical evidence..…because of cultural and social perception? Should we declare?” the court said.

The advocate for the petitioner submitted that in the first round of litigation on Maratha Reservation, the Supreme Court did not rely on the Gaikwad Commission's assertion that all Marathas are Kunbis.

In response, the bench asked the advocate whether there is any legal duty upon the state for which a mandamus can be issued.

“Tell us for seeking such a declaratory relief which writ are you praying? How can a mandamus be issued? Mandamus is for enforcing statutory legal duty. Where is the legal duty cast on the state? We need to understand the scope of 226. What is the statutory mechanism to declare a community as OBC? There are constitutional prov and presidential orders for SC and ST. What’s there for OBC?” the court asked.

While responding, the counsel relied on Article 342A (3) of the Constitution and submitted that the state can also make recommendations for inclusions and exclusions to the list of backward classes.

Advocate General Birendra Saraf submitted that the provision for the state to make recommendations was not there earlier. He added that after the Supreme Court Judgement of Jayshree Patil a constitutional amendment was made and clause 3 was added in Article 342A of the Constitution.

The bench then inquired whether a simple Government Resolution would suffice for this purpose or if legislation would be required to be passed by the state.

The bench asked the counsel to research the queries posed and posted the matter to July 31.

Case title: Sunil Shatrugan Vyaware vs State of Maharasthtra