The King and Queen of Hearts were seated on their throne when they arrived, with a great crowd assembled about them—all sorts of little birds and beasts, as well as the whole pack of cards: . . . In the very middle of the court was a table, with a large dish of tarts upon it: they looked so good, that it made Alice quite hungry to look at them—'I wish they'd get the trial done,' she thought, 'and hand round the refreshments!'
Alice's
Adventures in Wonderland
In 2018, the Government of Maharashtra
[GoM] enacted 16% reservation for Maratha community in education and employment.
It was challenged by three parties. Sanjeet Shukla and the Constitutionalist
Society of India were also petitioners in the earlier reservation matter in
which Maratha reservation was stayed by the Bombay High Court. Dr. Dhople was
the third petitioner. There were many interventions for and against the
reservation.
After hearing parties at
length, the Bombay High Court reserved the matter for orders. The common
Judgment was pronounced on 27th June 2019, more than three months
after the concluding arguments were heard. The High Court held that the State
had the power to grant reservation. For reasons stated in the order, the
reservation was pared to 12% in education and 13% in employment.
After the term of the BJP-Shivsena
Alliance government led by Devendra Fadnavis, fresh assembly elections were
held on 21st October 2019. Results were announced on 24th
October. Bitterness about the reservation issue boiled over, particularly in
the last days leading to the polling. Propaganda of NOTA as a punishment for
sins of the BJP was touted by a few vociferous fear-mongers. They insisted
that the government would increase the reservation to 100%. Reason was abandoned
in favour of fantasies; in general of BJP losing majority, and in particular of
Devendra Fadnavis losing his seat from his own constituency.
More than five years before all of these
developments, the GoM had provided 16% reservation for Maratha community by an
Ordinance. On being challenged by Sanjeet Shukla and others, it was stayed by
the Bombay High Court.
The main difference in the instruments
providing the two reservations is that the earlier was based on report of the
Rane Committee. That Committee did not have Constitutional status. The current
SEBC Act is based on the recommendations of the Maharashtra State Backward
Class Commission, a Constitutional body led by Justice Gaikwad.
It becomes necessary in this backdrop
to examine whether the SEBC Act will 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.
Why did the attempt to impose Maratha reservation fail in 2014?
In 1993, the Supreme Court, while
deciding Indra Sawhney, decided that reservation beyond 50% is
unconstitutional. It was held that 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. The legality of such
enactment granting reservation in excess of 50% would be open to scrutiny by
Court, as per the said Judgment.
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 14th century onwards, Maratha community
attained higher social, educational and political status because of its
occupation and customs. There has been no caste wise census since 1921. Hence
there is no proof of the Maratha community being 32% of the total population of
Maharashtra. Even otherwise, the very claim that they should get 16% reservation
because of the alleged 32% is absurd. The main motive behind reservation was
adequate, not proportionate reservation.
For decades, the Marathas were
demanding that they should be included in the OBC. But three reports of
Constitutional committees have rejected that demand.
The Gaikwad Commission report does not
show the exceptional circumstances as to why the benefits of reservation should
be given to Maratha community. In its conception and preparation, there was an
element of inevitability in the report. It seemed as if it was made to order. Exceptional
circumstances can only be invoked when a particular community was not able to
achieve social and educational progress because of social oppression or social
deprivation or being alienated from the mainstream. The report in question does
not provide any evidence of this happening to the Maratha community.
Though the backward community in India
may be more in number than the advanced sections of the society, it has been treated
as a minority for the sake of reservation. Hence cap of reservation at 50% has
been the law of the land. In Maharashtra, the law has been followed in its
breach by extending reservation to a category called the Special Backward
Classes.
However, reservation based on
recommendations of Gaikwad Commission is illegal. 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. Reservation of
seats in private and unaided colleges is violation of their Constitutional
rights to free trade. Hence the reservation cannot be made applicable to
private and unaided colleges.
Present situation
If the considerations as above are understood in today’s context, it can be seen that Maratha reservation will not scrutiny of law. The report of the Gaikwad Commission was the basis of the SEBC reservation. But the report was not tabled in the Assembly. The Action Taken Report was 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 had cut off 12% of the
total seats in education. 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? Why was it that except the misguided and
disoriented community of doctors and aspiring doctors, none else was talking about the so called
excessive reservation?
In the last throes of the election
campaigning, Raj Thakre, the leader of Maharashtra Navnirman Sena talked about
the plight of the open category students. The tragedy is that the four major
parties in the fray had nothing to offer regarding reservation. There was no
condemnation of the reservation policy by any political party. In fact, after
it was announced, all parties showed that all of them were for Maratha
reservation. Yet, the issue remains.
Students study hard to score enough in National
Eligibility cum Entrance [NEET] tests. After all, their career and future life depend
on their score in this exam. The implementation of the Maratha reservation has
made a mockery of this. It has ruined the lives of many medical aspirants. Some
may have been poor, some rich. Some may have been from rural background, others
thorough urban kids. Some may have been scions of illustrious doctors, others
first generation literates. All of them have one thing in common. They had
passed the NEET with flying colours.
Is
it not unjust and unfair that all other categories get a cumulative 52% while
the Maratha community, a single caste group, gets 12%? What happens to the
Kunbis who had enjoyed reservation in OBC category till now?
Most importantly, why are leaders of
the Maratha community still 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?
Now, after affirmation of the
reservation by the Bombay High Court, the matter is in the Supreme Court. The
main grounds to oppose the reservation, succinctly put, are as below.
That it breaches the 50% cap as laid
down in Indra Sawhney.
That reservation was an exception to
the first principle of Constitution i.e. Equality and the exception has now become
the norm by crossing 50%.
The Maratha community can not in any
manner be described as Socially or Educationally Backward. The data about the
so-called backwardness of the community is perverse use of statistics to prove
an untenable point. Gaikwad Commission Report was acted upon without due
deliberation in the assembly.
The power to declare a community or
class as backward is now vested in the President and it is not for the States
to declare a class as Socially and Educationally Backward. The 102nd
Amendment to the Constitution inserts the following provisions regarding
Socially and Educationally Backward Classes.
342A. (1) The President
may with respect to any State or Union territory, and where it is a State,
after consultation with the Governor thereof, by public notification, specify
the socially and educationally backward classes which shall for the purposes of
this Constitution be deemed to be socially and educationally backward classes
in relation to that State or Union territory, as the case may be. (2)
Parliament may by law include in or exclude from the Central List of socially
and educationally backward classes specified in a notification issued under
clause (1) any socially and educationally backward class, but save as aforesaid
a notification issued under the said clause shall not be varied by any
subsequent notification.".
366. (26 C) "socially and educationally
backward classes" means such backward classes as are so deemed under
article 342A for the purposes of this Constitution;’.
To put simply, the Socially and
Educationally Backward Classes shall only be which are so deemed under Article
342 A for purposes of the Constitution. No such thing happened with the Marathas
before they were declared SEBC by the GoM. As such, the entire edifice of the
SEBC Act is built on shaky ground. Sharad Pawar, the experienced and well
versed leader mentioned this lacuna, but the expediency of moment made the GoM
push forth nonetheless.
In the Supreme Court, all of the above
points will weigh in, as will other factors like the actual loss of seats of
open category due to wrong implementation of SEBC reservation during academic
year 2019-20, the tragedy of no open postgraduate seats in many post graduate
medical courses.
The war is long, the battle will be
tough. At stake are 12% seats in education and 13% reservation in employment.
This judgment will be a guideline for future disputes regarding reservation. Yet,
from the tenor of the previous rulings, the Bombay High Court judgment
upholding reservation in favour of Marathas is likely to be set aside. The SEBC
Act granting reservation deserves to be struck down.
Tailpiece: The reason for BJP not getting to form the government after the Assembly Elections in Maharashtra in 2019 may vary from person to person, depending upon one's political bent. But history has repeated the precedent that
the party extending benefits of reservation to a new class has been thrown out
of power.
© Adv. Shrirang Choudhary
Note: The tailpiece has been amended.
