Even the pandemic second wave tsunami cannot extinguish the heat produced by a week-old decision of the Supreme Court declaring as unconstitutional the quota for Maratha community granted in the Act on Reservation for Socially and Educationally Backward Classes (SEBC) in Maharashtra. It held that it violated the right to equality. The SC also confers exclusive power to the Union Government to identify and declare SEBCs.
The apex court considers 50% upper limit for reservation as inviolable. Therefore, it requires proof of “exceptional circumstances” for exceeding the limit to add to the list of SEBCs. The Union Government has moved a review petition on this decision holding that States are equal partners in this endeavour of identifying SEBCs.
Clearly, an issue between the Executive and Judiciary, between Governments and the Supreme Court and not between the Centre and States or between political parties. Reservation Policy is a complicated matter and is growing in complexities as time passes with more and more demands and less and less satisfaction. Our aim should be to make it simpler.
The question of validity of the law of 69% reservation prevailing in Tamil Nadu which is pending in the SC would be taken up after the decision of the Constitution Bench on the Maratha quota.
SC’s objection is both for recognition of Marathas as a SEBC and for exceeding the quantum of quota beyond 50% ceiling laid down in 1992 by the famous Mandal Judgement of the SC. By allowing separate quota for Marathas, Articles 14 on the right to equality, and Article 21 on due process of law were violated as per the verdict. The over-all limit of 50% of total places for admission in educational institutions and government jobs under all categories of backwardness had been in force for nearly 30 years and there were no “extraordinary circumstances” brought out by the Government of Maharashtra to justify exception to accommodate Marathas.
Three out of five judges who subscribed to this view also held that the Central government alone “to the exclusion of all other authorities, is empowered to identify SEBCs and include them in the list to be published under Article 342A(1)”. It will be a central list with names classified by State/UT. Will it replace existing State lists used for state-level opportunities? It is not clear, but seems it will not.
The other two judges on the Bench (one of whom was the presiding judge) held that Article 342A does not in any manner deprive States of their power, jurisdiction and competence to identify and declare SEBCs.
All the five judges agreed on the validity of 102nd Amendment of the Constitution that gives constitutional status to the National Commission on BWC and on the principle of 50% ceiling on total reservation fixed in 1992.
Between 2014 and 2021, Maratha quota was hanging in suspense, but not as an isolated case. Jats in Haryana, Rajasthan and many other States, Pattidars in Gujarat, Gujjars in Rajasthan, Kapus in Andhra Pradesh, to cite a few examples, are also playing Reservation Politics.
Recall, the Maratha Reservation Bill was first adopted in Maharashtra in 2014. the Bombay High Court in an interim order in November 2014 held prima facie that the 16% quota for Maratha community in education and employment was unconstitutional as it could not be considered backward. Yet, the Maharashtra Government passed a Bill in the State Assembly providing for Maratha quota up to 16% and 5% Muslim quota. Its validity was upheld by the Bombay High Court. Interesting is the fact that the Government did not proceed with Muslim reservation, which was approved by the court in the same judgement.
The question of Maratha quota dividing people continued for a long time. Bombay High Court in 2019 reduced the quota from 16% to 12% in education and 13% in jobs. With this, total reservation in Maharashtra stood at 70% including 10% for economically weaker sections – a straight defiance of the ceiling of 50% for reservation.
Denial of backward status to Marathas by the SC is a big blow to the State Government as much as to concerned Maratha community. The refusal to reconsider 50% cap on reservation is a bigger blow felt in many States that has gone beyond 50% by using “exceptional circumstances” clause. Maratha quota fall-out is national.
Another cause for serious worry for champions of Backward Classes in Tamil Nadu and other States in southern India is centralisation of the list which virtually reduces States’ power in “backward politics”.
There is also a genuine difficulty in identifying SEBC out of a conglomeration of hundreds of castes which have many more hundreds of sub-sects and sub-castes and divisions on regional, sub-regional, and linguistic basis. To understand the intricacies of the caste system is a challenge to even sociologists and anthropologists. Even castes bearing same name may not be equal in social status.
Backward Class Commissions constituted by the Tamil Nadu Government used to compile data on the number of government posts held by different castes grade by grade to determine their representation in government — a laborious work that can hardly provide any accurate or useful picture. First of all, there’s no rigid social demarcation between castes as inter-caste marriages are very common. Economic status determines social status intra-caste as well as inter-caste as much as ritual status. To continue caste criterion for identifying backward classes is no longer tenable.
Mandal Commission recommended 11 indicators to identify socially and educationally backward classes grouped as social, educational, and economic. Considered as socially backward by others, dependence on manual labour for livelihood, early marriage, lack of schooling and heavy drop-out, proportion of matriculates, size of family assets, type of house, availability of drinking water, taking consumption loan are major criteria of backwardness.
It is on the face of it difficult to identify backward classes without caste-wise data on these factors. To collect them as part of census exercise is an unworthy exercise. Our object should be universal education, basic minimum wage for all work, housing for all, water in every house and so on. Uplifting a few individuals cannot remove social and educational backwardness of a whole community. To counter this, sub-categorisation of OBC is attempted which will only lead to more complications.
While Tamil Nadu was the only State having over 50% reservation before the ceiling was fixed in 1992, there were several aspirants to follow its example. The final decision on the Maratha quota is going to be extremely significant.
Crucial is the point that the Union Government wants States to have a say in identifying SEBCs. The Centre has also asked for an open court hearing on its review petition and to stay operation of its judgement denuding States of the power to identify SEBCs. For the Union Government, it is impossible to prepare lists for all States even in collaboration with them.
In fact, it is a futile exercise which will promote race for recognition of backwardness between castes and intensify caste politics not for the benefit of communities but for some imaginary benefits to political players.