Understanding Castewise Reservation in Maharashtra

In the academic year 2018-19, overall reservation percentage in Maharashtra was 50%, as in many other states. But it is instructive to understand the background for reservations in Maharashtra. Reservation for the Other Backward Castes was prevalent in Maharashtra much before the implementation of the Mandal Commission recommendations.

The Constitution was amended to provide reservation to the Scheduled Castes/Tribes, so those reservations came to be dubbed Constitutional Reservations. There was and is no provision for reservation for the Socially and Educationally Backward Classes in the Constitution. But according to Article 340, the President was empowered to appoint a Commission for the advancement of this category. In 1979, when Morarji Desai was the Prime Minister, B. P. Mandal, a Member of Parliament was appointed as head of a Commission to look into the provisions for the backward castes as contemplated under the said Article 340. It was meant to report whether the SEBC category should be extended benefit of reservation in the basis of comparative study about its backwardness. The report of this Commission formed the basis of the Central Government implementing reservation to the tune of 27% for the Socially and Educationally Backward Classes; known by the term Other Backward Classes (OBCs).   

In 1980, the Mandal Commission came to a conclusion that the population of the said category is 52%, and accordingly, 27% reservation should be extended to OBCs. In 1990, with V. P. Singh as the Prime Minster, it was decided to implement the recommendations of the Mandal Commission. Like all decisions regarding reservations, this too was a political decision. It was opposed from many corners.

 The implementation of the recommendations was challenged in the Supreme Court. In the matter, known as th Indra Sawhney or the Mandal Commission case, a Nine Judge Constitutional Bench of the Supreme Court decided the matter and laid down that category other than Scheduled Castes and Scheduled Tribes can be provided reservation. It was also decided that the creamy layer should be excluded from the benefits of reservation. The cap of reservation at 50% was also an outcome of the said historic Judgment, though the judges opined that reservation beyond that cap could in exceptional circumstances. However, the exceptional circumstances would have to be proved by quantifiable data, and the validity of such reservation should be open to scrutiny of Courts.  This decision prompted almost all states to increase their reservation quota to 50%. The said cap became sacrosanct by this twisted interpretation of the letter and spirit of the order, and reservation of 50% came to be accepted as the law.

In Maharashtra too, 50% in education was made applicable. However, as in no other state, Maharashtra has further sub-categorized the OBCs. This was obviously done by the powerful leaders of various communities at the Central and State level for the benefits of respective castes. The said sub-categorization has also been accepted by the public at large. The accompanying table provides details of this sub-categorization in tabular form.

But the reservation in Maharashtra did not rest at that. In 2001, by enacting an act for providing reservation to the extent of 52%, the state has breached the cap set in Indra Sawhney’s case.  

Maharashtra was abuzz with talk of reservation after the Marathas were extended the benefit. But the discussion about the issue was loaded and politically motivated. For the sake of reportage, the discussion was limited to how beneficial the Maratha reservation was. The agitators for Maratha reservation were aggressive, but opportunistic political parties and immoral and talking heads, their minds corrupted by their hankering for fame and relevance threw the proverbial fuel in the burning sentiments. The daily dose of debate on television channels, the self-important spouting of opinions of experts in their own words by sundry anchors, the treatment of the literally life and death matter of Maratha reservation as a college debate topic, and discussions styled on the model of elocution competitions on college campus; the copious coverage of the topic of reservation did not raise the level of awareness of the public at large. On the contrary, the resolution of the already aggressive agitators hardened into a stance where there was open talk of mayhem.

There was simmering discontent about the Maratha reservation for various reasons, the foremost being that it was felt that Marathas were by no means a backward community. This feeling was of course backed by the reports of various Committees and Commissions which had denied backward class status to Marathas. The implicit political backing for reservation was also evident in the alacrity with which all political parties clamoured to voice their support therefor. In the midst of all this din, nothing was done to raise the awareness expected by the open or unreserved category. The opportunity of mature debate and reflection was sadly lost.

Most of the general population are unaware of even the basics of reservation. It is with a view to throw light on the prevalent system of caste-wise reservation in Maharashtra that this is penned. It is necessary here to understand certain concepts. Scheduled Castes/Tribes means those castes, tribes or classes which are included in respective schedules. These lists vary from state to state. For instance, a caste included in Scheduled Castes in Maharashtra may well find itself in open category in Andhra Pradesh, or a caste included in the Scheduled Castes in Madhya Pradesh may be classified as open category in Maharashtra. Other Backward Castes is altogether a different proposition altogether. There is a Central List of the OBCs, and different state lists. In Maharashtra, they are sub-categorized.

TO KNOW ABOUT PERCENTAGE OF OPEN CATEGORY, CLICK HERE.

The Constitution does not define Scheduled Castes/Tribes, but the Articles 341 and 342 provide for their welfare. Respective castes, tribes and classes which the President may specify in consultation with the Governors of various states will be treated as SC/ST respectively.

Scheduled Castes means those castes which were known cumulatively as Dalits.  People from these castes stayed within the society, but were not part of the society because of the prevalent social arrangement. The Scheduled Tribes are those who are known as the Adivasis.  People from this category did not reside in towns or settlements and were deprived of social contact because of their residence in forests, away from society. Forest produce was their main source of livelihood.

Apart from these, a category came to be known as the Denotified Tribes after Independence.  These were the castes notified as criminals by the British, and it was the practice that the names of all belonging to these tribes were on record of the government. The criminal element to these tribes was removed in Independent India. These were given status on par with Nomadic Tribes and a National Commission was established for their benefit.

In Maharashtra, the OBCs are subcategorized as under: OBC- 19%, Vimukta Jati (VJ)-2%, NT-B-2.5%, NT-C- 3.5%, NT-D-2% to make a total of 27%. In Maharashtra, 7 castes were further categorized as the Special Backward Class and were provided 2% reservation over and beyond the cumulative 27% for the OBCs. It is specially important to note that the this particular reservation breached the cap of 50% set In Indra Sawhney’s case.

RESERVATION IS NOT A FUNDAMENTAL RIGHT, SAYS THE SUPREME COURT. CLICK HERE TO READ MORE.

The percentage of open category in Maharashtra is a moot question. The troublesome existence and implementation of reservation policy then existent did not deter certain political parties from clamouring for Maratha reservation only with a political motive. After the BJP formed the Government in the Centre, in a hasty move, the then Congress- NCP alliance provided 16% reservation to Marathas and 5% to certain Muslim castes, by way of Ordinances. It should be noted that in Maharashtra various Muslim communities were already covered under OBC and ST categories.

The reservations provided by the Ordinances were challenged in the Bombay High Court. The implementation of the Maratha reservation Ordinance was stayed. The reservation given to certain Muslim castes, however was upheld by the Court. After the elections to the Assembly in 2014, the incoming ruling BJP-Shivsena alliance did not convert the Muslim Reservation Ordinance into law. Hence it ceased to be in force after its period of six months was over.

The demand for Maratha reservation grew strident by the day. Political compulsion, the ever growing aggression of the agitators and the helplessness of the affected people of the open category resulted in the loss of 16% of the available seats for the open category. The Central Government thereafter amended the Constitution to provide 10% reservation to the Economically Weaker Sections (EWS) of the classes who do not enjoy the benefits of caste-wise reservations.

 TO READ ABOUT SUPREME COURT AND MARATHA RESERVATION, CLICK HERE.

Validity of the Maratha reservation will be decided by the Supreme Court. The judgment in that matter will be a landmark in the history of reservations in India.

Tailpiece: The Chief Minister of Maharashtra, the most progressive state under wise kings, and home to many eminent people in the field of academics and education; feels compelled to tweet in support of atrocious reservation policy.

© Adv. Shrirang Choudhary

Reservations and the Ninth Schedule: Lies and facts

The Red Queen broke the silence by saying to the White Queen, `I invite you to Alice’s dinner-party this afternoon.’
The White Queen smiled feebly, and said `And I invite you.’
`I didn’t know I was to have a party at all,’ said Alice; `but if there is to be one, I think I ought to invite the guests.’
`We gave you the opportunity of doing it,’ the Red Queen remarked.

                                                                                                      ---Through The Looking Glass 

Political parties including the Dravid Munnetra Kazhagam (DMK) had recently approached the Supreme Court of India regarding the application of 50% reservation for the Other Backward Classes (OBC) Quota to the State surrendered seats in medical undergraduate and postgraduate courses through the All India Quota. They had filed petitions under Article 32 of the Constitution of India. At the hearing the Court queried as to what fundamental right was breached in the acts forming the basis for filing of the petitions. Stating that a petition under Article 32 lies only against breaches of fundamental rights, the Court pointed out that reservation is not a fundamental right. That being so, the omission to reserve 50% in the AIQ seats for medical courses cannot be challenged directly in the Supreme Court. The petitions were disposed of with liberty to file appropriate matter in the High Court.

Reservation lies solely within the discretion of the State. If the State does not extend benefit of reservation, the matter cannot be agitated in Constitutional Courts, because reservation is not a fundamental right. The speaking order in the matter does not mention all of this, but the reporting of the news carried this bit, and the fact of the Supreme Court so observing was spread far and wide.

In February 2020, in the matter of Mukesh Kumar vs. State of Uttarakhand, the Supreme Court had declared in no uncertain terms that a policy of not extending reservation in a particular matter cannot be challenged in Courts. In the din of other newsworthy bits of information, this epoch making judgment was relegated to single column reports in newspapers. There was no noteworthy analysis of the news in the mainstream media. 

About the judgment in which the Supreme Court ruled that reservation is not a fundamental right. 

This fantastic bit of news for the open category was not widely noticed or commented upon, but the newspapers did report it. Promptly, the proponents of reservation fired salvoes of their own.  Noises, appropriate or otherwise were made. The causes for reservation and the justification for the same were reiterated. There is reason for taking note of these events now. The happenings in the Supreme Court regarding Tamilnadu pleas for reservation, and the dry opinion expressed by the Court during hearing prompted many reactions. Ramvilas Paswan, a big proponent of reservation and a longtime Minister in various governments, peremptorily called for action. “All political parties should come together to amend the Constitution to shield all reservation laws from judicial review,” he’s reported to have said. His demand to put all the reservation laws in the Ninth Schedule of the Constitution were of a piece with the earlier statement of his son, Chirag Paswan, himself a Member of Parliament and President of the Lok Janashakti Party; a constituent of the ruling National Democratic Alliance (NDA) dispensation.

Ramvilas Paswan, however, carried it further. He demanded that reservation be included in the fundamental rights. Most importantly, he lied about the antiquity of reservation, invoking Gandhi along with Ambedkar to (falsely) add antiquity and historicity to the idea of reservation. “Reservation is the result of the Poona Pact between Babasaheb Ambedkar and Mahatma Gandhi. If anyone raises ifs or buts about it now, they will be negating the Poona Pact,” The Hindu reports him as saying.  

A responsible and powerful leader, and a long standing Member of Parliament making this statement is not a coincidence or a spontaneous reaction to the event of the day.  These sort of statements, particularly to the media, are deliberately made as an agenda. A part of this agenda is false propaganda. Any event going against some idea, attitude or government policy is deliberately played up. The dual intention behind this propaganda is to confuse opponents of the idea and to encourage adherents and proponents of the policy.

Paswan’s statement has caused a stir amongst the open category. Messages are doing rounds of social media. The helplessness of the open category burdened by the ever increasing quota of reservation manifests itself in anger about the government. The goals of Paswan and his ilk are achieved merely by this. Yet, the more lasting effect will be that the enjoyment of the real news is denied to the open category. The very motive might well be to deprive a conversation about the fact that according to the Supreme Court, reservation is not a fundamental right. This article is an attempt to throw light on historical facts and principles of law applicable.

As held by the Supreme Court recently, in a reasoned judgment in Mukesh Kumar vs. The State of Uttarakhand, reservation is not a fundamental right. The idea of reservation in education and employment did not find place in the Constitution. It was later inserted as an exception to the fundamental right of equality, dubbed the first principle of the Constitution by Dr. Ambedkar. In reaction to this, Chirag Paswan had made the same noises as Ramvilas Paswan is making now.

Reservation is the biggest fraud played upon the Constitution.  

The Ninth Schedule was inserted by the First Amendment to the Constitution. It named certain laws which would be beyond the purview of judicial review for violating fundamental rights. The contemporary reasons for the insertion of the Ninth Schedule are not germane to the issue at hand. Yet, the Ninth Schedule assumes significance because it is widely (yet wrongly) believed that 69% reservation is prevalent in Tamilnadu only because the law regarding the same is inserted in the Ninth Schedule, and that it cannot be challenged.

In fact, the cap of 50% reservation was imposed by the judgment in Indra Sawhney only in 1992. The 69% reservation in Tamilnadu was in effect and implementation much prior to the said decision of the Supreme Court in the matter also known as the Mandal Commission case. Tamilnadu was forced to enter the law regarding reservation in the Ninth Schedule only to continue the existing arrangements. Even then, the matter of reservations in Tamilnadu exceeding 50% is subjudice before the Supreme Court.  

In the meanwhile, the Supreme Court has ruled that the insertion of an Act in the Ninth Schedule would not preclude it from judicial scrutiny. It is therefore no longer sufficient that a law be added to the Ninth Schedule to take it beyond judicial reach. The idea of the Paswan duo has another hurdle to cross. The discretion o extend reservation is within the discretion of the States and there are different laws for different states with different provisions regarding reservation. The vast size of the country and the diverse conditions prevalent in various parts means that the evolving conditions have made it necessary that there be laws, rules, and other species of policies having force of law in various states.

As for Maharashtra, the Maratha reservation was introduced by a separate law, known as the SEBC Act in short. The Economically Weaker Section (EWS) category of reservation, inserted by a Constitutional Amendment was extended by a notification. The validity of the Maratha reservation, taking the total beyond the 50% limit set in Indra Sawhney is subjudice and the result is awaited soon.

The Supreme Court and Maratha Reservation 

Secondly, changing fundamental rights or adding to them is a complicated process. Paswan is too big a leader not to know this. It is hence necessary that his fulminations are debunked. As to the Poona Pact, reservation in education and employment was not a consideration at the time when it was signed by and between Dr. Ambedkar, Madanmohan Malaviya, C. Rajagopalachari. The Pact was to the effect that 148 seats in the Provincial Assembly were to be reserved for the depressed classes. It was signed in 1932, whereas the reservation in education and employment were provided much later than the adoption of the Constitution of India in 1950. The Poona Pact has nothing to do with the topic at hand.

It has been held by the Supreme Court in many matters that reservation is not a fundamental right. By asking the political parties who had filed petitions to approach the High Court, the Supreme Court of India has clarified the scope and limitations of its powers regarding reservation.

Proponents of reservation will try deliberately steer away conversation from this important topic.  It is imperative for them to contrast the fallout of the judgment, and they will do so by making pointless and false allegations and state patent lies. The desperate act of somehow associating Gandhi with reservation is one such ploy. All that the open category people and opponents of caste based reservation can do is to understand the issues and to make others aware of the same. Informed action to eradicate the evils of caste based reservations is the need of the hour. Understanding the importance of events is the key to it.

© Adv. Shrirang Choudhary

Understanding the order regarding Madhya Pradesh OBC quota

In an historic interim order, the Madhya Pradesh High Court has stayed the implementation of increased quota in the OBC reservation. The reservation for OBC in Madhya Pradesh was increased from 14% to 27% by the Congress Government led by CM Kamal Nath in 2019. The related Amendment Act was challenged by the petitioners, who had also sought a stay to the implementation of the enhanced quota in the recruitment of employees in Classes II, III and IV by the Madhya Pradesh Public Service Commission.

More than 400 posts to be filled by the advertisement issued in 2019 would be affected by the order. It should be noted that the recruitment process had almost been completed. Only the final selection list was awaited. However, despite many opportunities being granted, the M. P. Government had not filed its say to the interim application. On last date, the High Court had directed the government to file its say on 28th January, the next date fixed for hearing. However, despite seeking repeated adjournments the M. P. government did not file its say.

The High Court thereafter ordered that the recruitment process may continue, provided only the earlier existing 14% quota is applied for OBC reservation.

It is contented by the petitioners that the increased quota takes the total reservation to 63% which is beyond the 50% mandated by the Supreme Court in Indra Sawhney’s case. It is a point of interest that the crux of the case against Maratha reservation is that it increases the reservation beyond that limit.

Maratha Reservation in the Supreme Court, a look. 

The order assumes importance because it is interim in nature. The long pending process of recruitment will have to be completed. Hopefully, that rules out the mischief governments do by way of Ordinances. In any case, this is welcome news. Time for celebration. Hope the tide is turning to the benefit of the open classes.

Tailpiece: The recruitment process (मेगाभरती) in Maharashtra was in effect stayed in the cases against Maratha reservation. As for reservation in education, the original Act provided, per S. 16 (2) that the reservation was not applicable to courses to which admission process had begun prior to the SEBC Act coming in effect. Only the totally obnoxious mindset of the government, expressed by the much hated Ordinance promulgated by the GoM caused the devastation for the 2019 medical PG and UG batches.

©Adv. Shrirang Choudhary

Dhangar quota – demands, promises and reality.

Dhangar quota – demands, promises and reality.

The Dhangars in Maharashtra have been agitating for reservation under ST category since decades. Currently they get reservation of 3.5% under the Nomadic Tribes (C) category. Till the Maratha reservation, Dhangars were the largest single community to be included in a category on its own. Their population is estimated to be about 10% of Maharashtra’s population.

Their demands have been scaled up after the State quota granting 16% to Marathas and the Central quota granting 10% to EWS were announced. Their demand is seemingly simple, and made to look so by the assurances of leaders unaware of the practicalities of the matter. They want to be included in the ST with the existing reservation being added to the overall reservation for STs, which is 7%. The catch is that percentage of Constitutional reservations can’t be changed at the whims of state policymakers. It is for the Parliament to amend the Constitution.  

Inclusion of this or that community in ST category is the prerogative of certain Central bodies apart from the state Government. The National Scheduled Tribes Commission and the Registrar General of India have to concur with the recommendation of the State government for the inclusion of a particular community in the ST. Thereafter, the matter is referred to the Parliament for amendment of the Presidential Order.  

All of this only for the inclusion of the community in ST. Increasing the percentage of reservation for Sts is altogether another matter and seemingly impossible in the current scenario in Maharashtra already reeling under the impact of 74% reservation.

The Dhangar community, however wants to retain the reservation of 3.5% and at the same time to get protection under the Atrocities Act, exclusion from creamy layer criteria and certain other welfare benefits available only to the SCs and STs.

Maharashtra CM Devendra Fadnavis had promised that the Dhangar community’s demand would be complied with in the very first cabinet meeting. However, the power to fulfill their demands is with the Centre. The STs are apprehensive that the inclusion of Dhangars in their category would affect their chances. They are opposed to any new inclusion.  

Total reservation in the state is now 74% for education and 75% for employment. The Bombay High Court has suggested that Maratha reservation should be 12% for education and 13% for employment. Litigation regarding validity both of the Maratha and the EWS reservation is pending before the Supreme Court. In the circumstances, there seems no need to be panicky about declaration of the latest policy of the government. If it is true at all.

                                                                                                     ©Adv. Shrirang T. Choudhary