LOOKING BEYOND THE PENDING LEGAL CHALLENGES TO RESERVATIONS IN MAHARASHTRA

LOOKING BEYOND THE PENDING LEGAL CHALLENGES TO RESERVATIONS IN MAHARASHTRA

The Government of Maharashtra [GoM] extended 16% reservation to the Maratha community by the SEBC Act [SEBC]. Central government introduced 10 % reservation to the Economically Weaker Sections of the unreserved category [EWS] by amending the Constitution. This is in addition to the existing reservation of 52% for Scheduled Castes (SC), Scheduled Tribes (ST) and various other categories including Other Backward Classes (OBC) in Maharashtra. Effectively, the reservation has taken away 78% seats from the open category which includes candidates with family income of more than Rs. 8 Lacs per annum (creamy layer) excluding those belonging to SC/ST categories. Following is a summary of the Court cases regarding reservations to educational courses.   

Challenge to EWS reservation before the Supreme Court

Many organizations and individuals have challenged EWS reservation, mainly on the grounds that the Constitution does not provide for reservation according to economic criteria and that the reservation is in excess of 50% cap stipulated by the Supreme Court in the case of Indra Sawhney. The Supreme Court has declined to stay the reservation. It is likely that the cases will be heard after vacations.

Challenge to application of EWS reservation for current year.

Some students including one Rajat Agarwal had filed cases challenging the application of reservation for the current year before the Supreme Court regarding EWS. These are for courses in which admission process had started before the Constitution was amended to provide for EWS reservation. Notices were issued to parties including the Merdical Council of India and others. The Supreme Court heard the matter on 30.05.2019. Interim order was passed to the effect that the notification issued by the GoM extending benefit of the reservation of 10% to EWS category will have no application to the present ongoing process. EWS category cannot avail benefit of reservation for this academic year. This is an interim direction subject to the decision in the SLP pending before the bench.

Challenge to SEBC reservation before the Bombay High Court

Dr. Uday Dhople and other petitioners have challenged the SEBC reservation on several grounds including that the earlier Act was stayed by the High Court and that the reservation exceeds the cap mentioned above. At the stage of preliminary hearing, GoM have given undertaking that they will not give appointment letters based on SEBC reservations. However, no interim relief regarding reservation in education was granted. The validity of the SEBC Act is reserved for orders by the High Court. Reservation was provided to the Marathas earlier by the then Congress-NCP alliance GoM by an Ordinance promulgated in 2014. By its order in Sanjeetkumar Shukla vs. State of Maharashtra & others, the Bombay High Court stayed the effect of the Ordinance. Salient points in the order are summarised here.

S 16 (2) of the SEBC Act

Admission process to PG Medical courses in 2019 began on 02.11.2018, before the SEBC Act came into effect on 30.11.2018. Nagpur Bench of the High Court decided that the reservation would not apply to PG Medical courses starting in 2019. It was held that as per S 16 (2), SEBC reservation would not be given where admissions in courses where process had begun before SEBC Act came into effect. The Supreme Court dismissed the SLP filed by GoM.

At first, to negate the effect of these developments, the GoM offered to pay the fees of the students whose admissions were cancelled by the orders. However, the students and more stridently the Maratha reservation agitators kept insisting on their demand for the same seat, same seat and same branch. The GoM took the extraordinary step of seeking relaxation of the Code of Conduct from the Election Commission of India specifically to promulgate an Ordinance. The Ordinance so promulgated basically nullifies the effect of the order passed by the Nagpur High Court. It also effectively restores the earlier position where Maratha students benefited from SEBC reservation.

Challenge to the Ordinance

Some students had challenged the Ordinance before the Supreme Court on the ground that the Ordinance amends the law retrospectively. However, the petition was withdrawn with leave to file the same before Bombay High Court. Challenge to the Ordinance is to be heard by the High Court of Bombay.The Ordinance is legally flawed and likely to be declared ultra vires. As of now, the Ordinance is challenged only by postgraduate aspirant medical students. However, in time, after the results of the NEET UG 2019 are announced, aspirants of graduate courses of medical stream will challenge the same. Aspirants of BAMS, BPTh, BDS and allied graduate courses plus other streams like engineering, pharmacy, applied science, agriculture etc will wake up to the reality that far lesser seats are available this year than the last year and agitate about the applicability of the Ordinance because in most cases, admission processes had started before 30.11.2018.  

Professional courses are of course more noticed, but even students to diploma courses like polytechnic will be affected. It will be more difficult to obtain admission in 11^th standard (FYJC) in colleges of choice. This realization may lead to more challenges to the validity of the Ordinance in the near future, and to the issue of reservation having reached 78% of the available seats. There is likelihood of disturbance regarding understating of the issue, mainly because there is little awareness about its implications.

Looking Beyond

The Ordinance will apply for this year if Courts of law do not rule otherwise. SEBC is not likely to stand judicial scrutiny. Here is a look at the legal position regarding the Constitutional validity of the Maratha reservation

EWS reservation is a different story altogether. There has been a consistent demand for abolition of caste based reservation. Instead, it is argued by many, reservation based on economic status is a fairer tool of social justice. EWS is a step in that direction. Beneficiaries of that reservation will surely use that argument in the litigation against EWS. 

The calls for total abolition of reservation or limiting the percentage to 52% are illogical. Present state of reservation in Maharashtra has become worse for open category students because of SEBC reservation. It is time to wake up to the reality that calling for limiting the reservation is futile unless Maratha reservation is challenged and it is declared as unconstitutional by Courts of law. 

Application of SEBC reservation in PG medical and dental courses hurt more because there are lesser PG seats. For MBBS, BAMS, BPTh, BDS and allied graduate courses, the impact of additional reservation will be much bigger. 

It is necessary that the public is motivated and mobilized against this atrocious reservations and percentages which are killing chances of open category children to get good education due to faulty policies.The quota system is also responsible for demotivating aspirants of government jobs. This is particularly true of jobs in Central and State Civil services where talented officers become the mainstay of smoothly functioning administrative apparatus. 

The idea of caste based reservations has outlived its utility. Continuing with them is like riding a tiger. It was unwise to continue reservations after the period contemplated by the makers of the Constitution. It would be disastrous to discontinue them now. Yet, the unthinkable needs to be done for the good of the nation. It is high time to accept the fact that the benefits of reservation have more than adequately satisfied the dreams of the makers of the Constitution. Otherwise, the bitter conclusion is that even after decades of reservation, the condition of the reserved classes has not improved. The policy of reservation has been abused beyond all recognition by a select few of the intended beneficiaries. Indeed, the government have acknowledged as much by appointing a commission headed by Justice Rohini to examine the issue of sub categorisation of the OBCs.

It is the responsibility of the government to decide the efficacy of a policy. Reservation is a creation of Constitution. It requires Constitutional amendments to change the reservation structure. However, Constitution has been amended in the past. Recent surge in demands for quotas by politically influential communities and increased apprehensions of the open category have galvanized public opinion. There is a groundswell of anger about caste based entitlements lasting generations together. Slowly yet surely, there is a realisation amongst the professionals and the aspiring youth that their hard earned merit is of no use. 

The government will have to be adaptive to these sociological shifts. The NDA government has taken some bold decisions  Demonetisation, introduction of GST are the more notable of these. The same resolve should be shown in addressing the needs of the nation where almost every other person has an android phone. Where the considerations that prompted reservations in the first place are no longer applicable due to mass urbanisation, poverty alleviation and effects of globalisation.  Scholarships, training and other incentives in the aid of promotion of talent in the reserved categories have been in place since decades. There is no opposition to such measures. But the absurd effects of excessive reservation have caused resentment about the government.

Doing away with caste based reservation to promote a society more in tune with fair opportunity for all is the foremost demand. Merit should be the only consideration for education and employment. 
 

The introduction of reservation for Economically Weaker Sections of persons not availing benefits in caste based reservations is a welcome step in the right direction. 
The mandate that the Modi government has got from the public will be an indication to them that more such steps would be appreciated. 

Adv. Shrirang Choudhary