The Bombay High Court on Thursday asked the petitioner whether it was competent to evaluate historical evidence and declare all Marathas as Kunbi and issue them Kunbi certificates.
The question was raised during the hearing in a PIL by Sunil Shatrugan Vyaware which sought direction to the state to declare all Marathas as Kunbi and 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? Can we take upon ourselves the study that because of this historical evidence..…because of cultural and social perception?” a bench of Chief Justice DK Upadhyaya and Justice Amit Borkar said.
The judges said there may be demand or aspiration that they maybe declared as a scheduled class. There is a mechanism to decide who belongs to a particular class.
Petitioners advocate 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.
To this, the bench asked whether there is any legal duty upon the state for which a direction can be issued.
“Tell us for seeking such a declaratory relief which writ are you praying? How can a mandamus (an official order from a court of law stating that a person or organisation must do a particular thing) be issued? Mandamus is for enforcing statutory legal duty. Where is the legal duty cast on the state?” the judges asked.
It further asked 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.
The advocate contended that under Article 342A (3) of the Constitution, the state can also make recommendations for inclusions and exclusions to the list of backward classes
.Advocate General Birendra Saraf submitted earlier there was no provision for the state to make recommendations. After the Supreme Court Judgement in earlier Maratha reservations matters, a constitutional amendment was made and clause 3 was added in Article 342A of the Constitution.
The court asked whether a simple Government Resolution would suffice for this purpose or if legislation would be required to be passed by the state.
The HC has asked the advocates to research on the questions raised and kept the matter for hearing on July 31.
