Going by Judicial Precedent, Maratha reservation will not survive judicial scrutiny

 GOING BY JUDICIAL PRECEDENT, MARATHA RESERVATION WILL NOT SURVIVE  JUDICIAL SCRUTINY

On the eve of the last Assembly Elections in 2014, the then Government of Maharashtra [GoM] promulgated an Ordinance. This was after the NDA government led by Narendra Modi swept the UPA, led by Congress’ Manmohan Singh led government out of power. The Ordinance provided 16% reservation to the Maratha community. It was challenged promptly. In due course, after hearing parties at length, the High Court of Bombay stayed the Ordinance and the reservation. 

The Supreme Court refused to intervene in this matter. 

Why did the attempt to impose Maratha reservation fail in 2014?

 
After the formation of the BJP-Shivsena Alliance Govt led by Devendra Fadnavis, a law was enacted to provide reservation for Marathas, but that was also stayed by the High Court of Bombay. 

For a version of this article in Marathi, click here.

About four years after this, the GoM provided reservation for Maratha community by enacting a law known as the SEBC Act. The main difference in both laws is that the earlier was based on report of the Rane Committee which did not have Constitutional status, whereas the current SEBC Act is based on the recommendations of the Maharashtra State Backward Class Commission, a Constitutional body led by Justice Gaikwad.  

The GoM was emphatic in saying that the reservation will stand judicial scrutiny. Some ministers including Sadabhau Khot spoke about it. But Chandrakant Patil, the Chairman of the Sub Committee for Maratha reservation prays at Pandharpur expressly seeking that the reservation should withstand judicial scrutiny. Many in the GoM say that they will deploy an army of lawyers to defend it in Courts of law. Vinod Tawade, the Education Minister says that the demand for the report of the Maharashtra State Backward Class Commission to be tabled on the floor of the house is impractical. His explanation? If opponents read it, they will challenge the law in Courts!

It becomes necessary in this backdrop to examine whether the law will really stand judicial scrutiny. To analyze the issue, it is necessary to understand the grounds on which earlier reservation was struck down by Courts in the matter known as Sanjeet Shukla vs. Union of India.

In 1993, the Supreme Court, while deciding Indra Sawhney, decided that reservation beyond 50% is unconstitutional. However, in exceptional circumstances, if a community can be classified as backward, this limit can be breached. However, this increase should on the basis of quantifiable data. However, the legality of such enactment granting reservation in excess of 50% would be open to scrutiny by Court.   

In the Constituent Assembly debates, Dr. Ambedkar had opined, “if the open seats are reduced to 30% due to reservation given to a particular community, then that reservation would not be just.” Thus, the makers of the Constitution did not agree with reserved seats being more in number than open seats.  

In its report, the Mandal Commission had included Maratha caste in ‘Forward Hindu Castes and Communities.’ The National Backward Class Commission had in its report in the year 2000 said that Maratha caste is a socially advanced class. Maharashtra State Backward Class Commission had refused to classify the Marathas in the Other Backward Class category, in 2008. This demand was again refused in 2013.

Maratha community was counted amongst the Kunbis, but from the 14^th century onwards, Maratha community attained higher social, educational and political class status because of its occupation and customs. There has no caste wise census since 1921. Hence there is no proof of the Maratha community being 32% of the total population of Maharashtra.  

For decades, the Marathas are demanding that they should be included in the OBC. But three reports of Constitutional committees have rejected that demand.    

The papers provided by the GoM do not show the exceptional circumstances as to why the benefits of reservation should be given to Maratha community. A community can be said to be in exceptional circumstances only when it was not able to achieve social and educational progress because of social oppression or social deprivation or being alienated from the mainstream. Hence even though the backward community in India may be more in number than the advanced sections of the society, cap of reservation at 50% is the law. The reservation based on recommendations of Rane Committee is illegal.

Reservation of seats in private and unaided colleges is violation of their Constitutional rights to free trade. Hence the reservation can not be made applicable to private and unaided colleges.

According to the decision of the Supreme Court of India in Rohtas Bhankhar vs. Union of India, reservation in employment cannot exceed 50%. The reservation law enacted in 2001 in the State of Maharashtra provides for reservation of 52%. Hence no reservation can be provided in excess of the existing reservation for employment.

Present situation

If the considerations as above are understood in today’s context, it can be seen that things have not changed much. Only difference in this and that case is the report of the Gaikwad Commission. But why was the report not tabled in the Assembly? Why was the Action Taken Report not made public? It was also reported in the press that three out of the eight members of the Commission had expressed views opposing the report. What were those views? What was the opinion of the Commission? Why should not the so called revolutionary report of 20000 pages be made public?

This reservation has cut off 16% of the total seats. Why is there no popular opposition to the reservation? How can the opposition parties proclaim loudly that all communities wanted the Maratha community to be given reservation? Is it not unjust and unfair that all other categories get a cumulative 52% while the Maratha community, a single caste group, gets 16%? What happens to the Kunbis who had enjoyed reservation in OBC category till now?

Most importantly, why are leaders of the Maratha community demanding reservation from OBC category? And now if reservation is sought from OBC category, why was so long the rider “without disturbing existing reservations” being bombarded at every opportunity?

The Chief Minister had professed his bounden duty to ensure Maratha reservation from day One. Matter was pending for hearing before the High Court. Literally nobody had expressed opposition to the reservation. On whose orders then were provocative slogans being raised? Who was responsible for the headlines causing terrifying unrest and instability in the society?

Now, after declaration of the reservation, there is a public outcry, “The fight is not over. All is well only after Courts clear the reservation.” Leaders are supposed to provide this wisdom, this patience to their followers. Now the test is not of the reservation itself but of the so called leadership of the agitation.  The coming days will decide how mature the society in Maharashtra is.

                             ©Adv. Shrirang Choudhary

• For a Marathi version of this article, click here.