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

Will the Supreme Court stay the implementation of Maratha reservation ?

The Supreme Court will hear the SLPs filed by Dr. Uday Dhople, Sanjeet Shukla of Youth For India (YFE), Rajshri Patil and others on 5th February on the point of stay. Despite availing ample time to file their Counter-affidavit, the Government of Maharashtra filed an application seeking adjournment of the hearing scheduled on 4th February. Admission to postgraduate medical courses is the most urgent issue for which stay is necessary. 

Faulty implementation of policy, despite there being a savings clause in the SEBC Act, by which the reservation should not have been extended to that batch resulted in the Nagpur Bench of Bombay High Court cancelling admissions of students on the basis of SEBC reservation for the 2019 batch. The Supreme Court affirmed this order. 

Most egregiously, the GoM promulgated the infamous Ordinance overriding the Nagpur Bench order confirmed by the Supreme Court. In the event, Postgraduate medical batch of 2019 suffered despite a Court order in their favour. Later on, the Maratha reservation was upheld by the Bombay High Court. It is against this order that the petitioners are in the Supreme Court. For better understanding of the issues at stake, it would be beneficial to understand why the Maratha reservation was stayed by the Bombay High Court in 2014.

Salient points in the case of Sanjeetkumar vs. State of Maharashtra 

According to the Supreme Court’s decision in Indra Sawhney, reservation exceeding 50% is against constitutional principles. However, in exceptional circumstances if the backwardness of a community and inadequacy of representation can be proved by quantifiable data this limit can be exceeded. The validity of such reservation exceeding 50% can be examined by Courts. 

Dr. Ambedkar, in his speech in the Constituent Assembly had opined that if the reservation is to be consistent with the principle of equality of opportunity enshrined in the Constitution, it must be confined to a minority of seats. If reservation for a collection of communities comes to 70%, thereby limiting the unreserved to 30%, it will not be giving effect to the first principle i.e. equality of opportunity.

Mandal Commission had included the Marathas in ‘Forward Hindu Castes and Communities’.

Mandal Commission in 1990, National Backward Classes Commission in 2000 and the State Backward Classes Commission in 2008 and 2013 have rejected representations of the Maratha community to be considered as socially and educationally backward class.

Marathas were essentially kunbis, however from the 14^th century onwards, they advanced themselves socially, educationally and politically because of their customs and occupation.

There has been no caste wise census since 1921. The State Government’s assumption that Maratha community is 32% of the population cannot be accepted to justify the reservation of 16%

The documents on record do not prove that there are exceptional circumstances to extend benefit of reservation to Maratha community.

Extension of benefit of reservation to a particular community due to exceptional circumstances can only be considered when the said class could not make social and economic progress because of social oppression or deprivation or social discrimination against or social segregation of the community in whose favour reservation is to be extended.

In Indra Sawhney, having noted that backward classes in India constitute majority of the population, Justice Reddy still held that ceiling limit of 50 per cent on reservations is a binding rule and not a rule of prudence.

The Rane Committee Report suffers from several glaring flaws, which go to the root of the matter.

Imposing reservations on private unaided institutions constitutes an unreasonable restriction upon the fundamental right guaranteed by Article 19(1)(g) to establish and run educational institutions. Hence this reservation will not be applicable to such institutions.

In so far as reservation in public employment is concerned, applying the law laid down by the Constitution Benches of Supreme Court in the years 2006 in the case of M. Nagaraj and in July 2014 in the case of Rohtas Bhankhar, the percentage of reservations cannot be in excess of 50%.
 
Points to be noted
 
The only difference between the Ordinance extending reservation to Marathas in 2014 and the SEBC Act 2018 is that the later is purported to be based on the recommendations of the report of the Maharashtra States Backward Classes Commission headed by Justice Gaikwad. better known as the Gaikwad Commission Report. Said report is not yet made public. it was not tabled in the Legislative Assembly nor was the Action taken Report issued before its recommendations were accepted and reservation was extended to the Maratha community.

Tailpiece:   The reason mentioned for seeking adjournment is that annexures to the report have not yet been translated and that the Counter affidavit is not ready. It would be interesting to see whether any action is taken against responsible officials for their negligence and lack of due care towards the petitioners and the Supreme Court.

© 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

Joy, Ecstasy and Ordinance; The Tragic Tale of Maratha Reservation Applied in 2019-20

On 30^th November 2018 the Act providing reservation for the Marathas, known as SEBC Act came into force. Without any deliberation in the Legislature, the recommendations in the report of the Maharashtra Backward Classes Commission headed by Justice Gaikwad were accepted by the then GoM. Almost as a chore, the bill introducing 16% reservation for Marathas in education and employment was passed unanimously in both houses of the legislature. Just as mechanically, it was signed into law by the Governor.

Stockholm syndrome: Condition where hostages develop psychological alliance with their captors as a survival strategy during captivity. These feelings are considered irrational in light of the danger or risk endured by the victims. https://t.co/tDdtwviUGP pic.twitter.com/8ybEa0QnLT

— scaranga (@scaranga1) May 19, 2019

The law was promptly challenged in the High Court of Bombay only to be upheld by a division bench, which pared down the reservation to 12% for education and 13% for employment. Now, the validity and constitutionality of the SEBC Act is in challenge Before the Supreme Court. As lawyers say, the matter is sub judice. 

Supreme Court and Maratha Reservation 

This is not the story of the SEBC Act. This is about how the Act was applied to the academic year 2019-20, surely the annus horribilis for education purposes in living memory. This story is about the botched policy of handing out doles maliciously only for appeasement, in spite of reportedly sound advice of bureaucrats. This is also the story about how a powerful government enjoying absolute majority could be made to surrender to brute show of force by a community fuelled by political ambitions of parties out of power. For that, good riddance, Devendra Fadnavis, and the Empowered Group of Ministers for Maratha Reservation led by the cocksure but clueless Chandrakant Patil. But we digress. We jump the gun. We go too far ahead. So, to get the story straight.  

 The drafting of the law, “a guerrilla tactic” according to Chandrakant Patil was dramatically, almost breathlessly covered by the over eager media, bending over backwards to tell the sordid saga. The eminent lawyer Harish Salve, [by then of the Harshvardhan Jadhav case fame] was said to have applied the finishing touches to the legislation which was “the most important event in Maharashtra in the last 70 years" [again Chandrakant Patil]. 

Be that as it may, the enactment contained all good components of a well drafted piece of legislation. It also contained a savings clause, in S 16. More of that later.

After the publication of the SEBC Act in the Gazette, the GoM put out a notification on 8th March 2019. It contained directions to all educational institutions to provide reservation of 16% for the Maratha community and 10% separate reservation for the Economically Weaker Sections [EWS] as announced by the Central Government. In Febraury, the Parliament had amended the Constitution to allow for this reservation to people who were not in any class covered by the existing reservation. Addition of this set of reservations took the total reservation in Maharashtra to 78%. After the Notification, the seat matrix was changed to include SEBC reservation.

Promptly, some students of postgraduate medical courses approached the Nagpur Bench of the Bombay High Court. Their contention was that according to the provisions in S 16 (2) of the SEBC Act, Maratha reservation was not to apply to courses for which the admission process had already begun. Admittedly, the admission process for the postgraduate medical and dental courses had already begun much before the SEBC Act came onto force. The notifications for National Eligibility cum Entrance Test [NEET] for both postgraduate and undergraduate medical and dental courses were issued before 30^th November 2018. Thus the Maratha reservation was not to apply to postgraduate medical and dental courses, was the plea of the students who approached the Nagpur Bench.

On 4^th May 2019, the   Nagpur Bench cancelled the admissions of students of PG medical courses who had availed of Maratha reservation and directed that the admission process be carried out afresh as if the reservation for Maratha students did not apply. Immediately, the omnipresent Chandrakant Patil proclaimed that the GoM would appeal to the Supreme Court. The Supreme Court declined to entertain the Special Leave Petition {SLP], but did take into account the plea for extension of time so as to comply with order of the Nagpur Bench. But the expression of willingness to comply with the order [and its own law] bought with it a renewed militancy in the Maratha agitators. They banded with the students and voiced their demand for the same seat in the same course in the same college. Providing them with a seat in private college and reimbursing the difference was not good enough for the students whose admissions were to be cancelled. They started protesting against implementation of  the order.  

When it became clear that the botched policy of applying reservation had failed, and that the students already admitted wouldn't budge, the GoM, again through Chandrakant Patil voiced its intention to bring in an Ordinance, in effect to regularise the admissions cancelled by the Nagpur Bench. People who had fought against the reservation and were hoping for a positive ruling in the main matter sub judice before the High Court petitioned the Chief Minister and the Governor. 

UG2PG MUMBAI GROUP MEETING DEVENDRA FADNAVIS

The Chief Minister is said to have made his position clear, he would stick to the policy adopted. The Governor has little say in the matter as it is the prerogative of the government to make laws. Ordinance is just a species of law. And an ordinance is as good or bad a law as Courts determine. The tragedy in this case was that the law contained a safeguard against hasty implementation of the reservation. 

It would have been in the interest of everybody concerned that the law be examined for its constitutional and legal validity by the Bombay High Court. The High Court had expressly referred to the unseemly haste with regard to the Megabharati or the mass recruitment. The GoM had undertaken not to appoint anybody on the reserved seats till the matter was finally heard and decided. The same policy should have been adopted for admissions to educational courses.

Even otherwise, the Nagpur Bench had made it clear that the express provision in S 16 was there for the purpose of removing ambiguities.

" . . . the Legislature had a foreboding about cropping of some ambiguity regarding applicability of this Act to various admission processes and with a view to remove all such doubts and ambiguities that the Legislature has inserted the explanation to each of the subsections of Section 16." 

After discussion about arguments on both sides, the Nagpur Bench held in its operative order

" . . . the revised provisional seat matrix published on 27.3.2019, insofar as it makes a provision for the category of SEBC candidates, being illegal, shall not be given effect to for the limited purpose of SEBC reservation in current admission process. The respondents, however, would conduct the admission process and complete it in accordance with applicable law, rules and orders before commencement of the SEBC Act, 2018."

In the event, the GoM by promulgating Ordinance took unforeseen steps to undo the effect of declaration of law by the High Court. Having participated in the hearing, and further having sought time before the Supreme Court to implement the order of the Nagpur Bench, it should not have taken steps to reverse the decision of the Court. The interpretation of law by a Court of Record, the High Court in this case, confirmed by the Supreme Court should have been implemented. Instead, the GoM disturbed the scheme of things by the Ordinance.

The Ordinance was bad in law and in circumstances of the matter. There was a recent precedent regarding an Ordinance about medical admissions being quashed. There were striking similarities between facts of the matter and in the case decided by the Supreme Court, Medical Council of India v. State of Kerala. In Janapada  Sabha  Chhindwara  vs. The   Central   Provinces Syndicate Ltd. and anr. 1970 (1) SCC 509, the Supreme Court had opined,

“. . . it is not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.”

So, the Ordinance should not have survived scrutiny of law. But for that to happen, effective challenge should have been mounted. It was not so done. The story gets murky from here. Against express advice to the contrary, some people approached the Supreme Court to seek relief against the Ordinance. The Supreme Court directed that the matter be agitated before the High Court. After much dillydallying on both sides, when the matter was finally to be heard, some luminary thought it fit to seek a clarification from the Supreme Court about maintainability of the challenge before the High Court. In stern words, the Supreme Court refused to issue any clarification. Of course, the idea was laughable, were it not tragic to note that it was only a ruse to somehow defer the hearing about validity of the Ordinance. 

After this, the High Court interpreted the order of the Supreme Court as the interested parties would have liked, and the writ petition challenging the Ordinance was dismissed. Then the matter reached the Supreme Court. Ultimately, it got listed for hearing at a stage when the petitions challenging the SEBC Act were to be finally decided by the Bombay High Court. The Supreme Court also did not hear the challenge to the Ordinance on merits. 

Unfortunately, against all expectations to the contrary, the validity of the SEBC Act was upheld by the Bombay High Court. The groundswell of anger and resentment was rising, particularly amongst the medical fraternity. Imperceptibly, a movement arose in Vidarbha. Massive rallies, various sorts of agitations, protest marches, representations to elected representatives were undertaken by a group of people. The movement, known as Save merit Save Nation [SMSN] captured the imagination of the middle class and the professional class alike. Elected representatives visiting their constituencies, political leaders touring the state, MLAs, MPs were met with flags of protest against the "excessive reservation" beyond 50% in the state of Maharashtra. Many demands were raised, many people joined the movement, many towns and cities saw huge crowds gather. 

The GoM ultimately saw enough to meet a delegation of SMSN. In a meeting held in presence of various Secretaries, the Chief Minister Devendra Fadnavis agreed to many of the demands in principle. Most importantly, the GoM accepted that it had erred in applying the reservation for 2019-20, and agreed to reimburse the difference in fees between private and government colleges for the students who were directly affected by the SEBC reservation being applied. Ultimately, a package amounting to hundreds of crores was approved by the Cabinet.  

By then, various people had moved the Supreme Court against the Bombay High Court judgment validating Maratha reservation. Of these, the most important challenges are the ones raised by the original petitioners Jaishri Patil, Dr. Uday Dhople and Sanjeet Shukla. The hearing on the matters, scheduled for August had to be postponed because the Supreme Court was hearing the Ayodhya matters on a daily basis.  

In September, bugles were sounded for elections to the Maharashtra assembly. Almost immediately, cries for None of the Above [NOTA] went out on social media platforms. Disgruntled voices cried themselves hoarse about the efficiency of NOTA as a weapon to punish the transgresses of the GoM led by Fadnavis. Wise people threw caution to the wind proclaiming their lifelong support for Jan Sangh ideology, but inclination to vote NOTA this time around. Social media was abuzz with the virtues of NOTA. None of that seemed to have mattered for the BJP when the results were declared. BJP had won enough seats along with Shiv Sena to form government. 

However, history is anything but kind. And it repeats itself. The unimaginable happened after suspense of about a month or so after the elections. The BJP, having made Devendra Fadnavis Chief Minister again, was thrown out of power by the coalition of the unlikely political combination of Shivsena, NCP and Congress. Sweet revenge for the people affected by the SEBC reservation. 

The tragedy is that the story of  students affected by the introduction and implementation of SEBC reservation in 2019-20 may never be told. 

Tailpiece:  Political parties extending reservation benefits to new classes have lost power. Eg. V. P. Singh after Mandal recommended OBC reservation. Prithviraj Chanvan led Congress-NCP after ESBC reservation for Marathas by Ordinance in 2014. Now despite a clear mandate for governance with its allies, the BJP finds itself in opposition.

Adv. Shrirang Choudhary