Striking Down Maratha Reservation

Reading time : 8 minutes

INTRODUCTION

In 2018, Maharashtra government passed Maharashtra State Reservation for Socially and Educationally Backward classes (SEBC) Act. The law classified Marathas to be a ‘socially and educationally backward class’ and granted them with 16 per cent quota in educational institutions, including private schools, and in public sectors. The law was based on a report made by the Maharashtra State Backward Class Commission under the supervision of Justice N.G. Gaikwad.

While the rule was upheld by the Bombay High Court in June 2019, the quota was decreased to 12% in education and 13% in jobs, as suggested by the commission. In addition, Maharashtra’s law boosted overall reservation to more than 50%[1]. According to the Bombay High Court decision, after adding the 12 and 13 percent quotas, the overall reservation in educational institutions and government jobs was increased to 64 percent and 65 percent, respectively.

The petitioners challenged the Act in the Bombay High Court as a constitutional violation since it intended to increase Maharashtra’s quota from 52 percent to 68 percent. It was also claimed that, as a result of the Constitution (102nd amendment) Act, which took effect in August 2018, the State legislature no longer has the authority to define a social or educationally backward class.

GAIKWAD COMMISSION

The nine-member Maharashtra State Backward Class Commission, led by Justice M.G. Gaikwad, considered several factors in its 1,035-page report, which was given to the government in November 2018, to propose reservation for the Marathas. The State legislature enacted a law on November 30, 2018, based on the study, allowing the Marathas 16 percent reservation in government employment and education, despite the Marathas being classified as a “socially and educationally backward community[2].”

While the previous Khatri Commission suggested that Maratha-Kunbi and Kunbi-Maratha be added to the OBC list as a sub-caste of Kunbi, it did not recommend that Marathas be added to the list. According to the report, the Bapat Commission was also opposed to the Maratha group being included in the OBC category, which the Maharashtra government refused to accept. According to the report, the then-Government of Bombay published a government decision in April 1942 with a list of Backward Classes, which included the Maratha group, for the purpose of education. The Maratha group, however, disappeared from the list of Scheduled Castes, Scheduled Tribes, and Other Backward Classes (OBCs) published by the Central government in 1950, according to the Commission[3].

The Marathas are a predominantly agrarian community, traditionally known as warriors, who rule Maharashtra politically. They control over 75% of the land in the state, as well as 86 of the 105 sugar mills, as well as around 55% of educational institutions and over 70% of cooperative groups. Since 1962, Marathas have dominated the political scene, with 12 of the 18 Chief Ministers hailing from the group and over 60% of all members of Maharashtra’s Legislative Assemblies being Marathas. Despite political supremacy over the years, repeated agricultural crises have created a large gap between them, resulting in a loss in financial security among the lower and middle classes. It resulted in a desire for job and educational reservations[4].

The bill was introduced after the community conducted massive “silent marches” around the state in 2017 and 2018 to seek reservation. The demand wasn’t new; it had been in the works since the 1980s. Several community agitations have place over the years, but none were as well-organized as the ones that forced the political class to go forward and take decisive actions in those years. Based on public meetings and grassroot exchanges performed by experts and institutions with 1.93 lakh people, including individuals, gram panchayats, public representatives, and organizations, the Gaikwad Commission found that the community required reservation.

It was discovered that 76.86 percent of Maratha families worked in agriculture or farm labor, that around half of them lived in mud houses, that only 35.39 percent of Marathas had personal tap water connections, that 13.42 percent of Marathas were illiterate, that only 35.31 percent had completed primary school, and that 43.79 percent had completed HSC and SSC.

According to the study, because Marathas were soldiers and their men were frequently abroad on campaigns for local rulers, their women were forced to adopt the “purdah system” to protect themselves from competing rulers. As a result of this policy, Maratha women were not permitted to leave the house for educational purposes. Similarly, widows of soldiers were not permitted to remarry since the property of the deceased soldier’s parents and children may be taken over by the new spouse, leaving the dead soldier’s parents and children penniless. Women were forced to work in the fields and so were unable to advance. According to the research, the frequency of child marriage and dowry, which obstructs girls’ education, is another cause for their social and educational backwardness. One of the studies used by the committee separated the analysis into three categories: social, educational, and economic backwardness.

The research stated that due to poverty, children from the community, primarily females, did not have the opportunity to pursue basic and higher education, as a result of which they were unable to sit for competitive examinations. As a result, they have a lesser representation in government positions. According to the study, the group had lost its sense of self-worth, which might be restored by granting them reservation under the Socially and Economically Backward Classes category.

BOMBAY HIGH COURT JUDGMENT

The Bombay High Court affirmed the law’s legality, finding that Indra Sawhney did not provide any state the authority to surpass 50 percent reservation in meritorious cases. Indra Sawhney’s case[5] was resolved by a Supreme Court bench of nine judges in 1992. The case is known for definitively establishing many landmark proposals, including a 50% reservation barrier, a prohibition on reservations in certain sorts of postings, and the exclusion of the “creamy layer.” The omission of the term “creamy layer” alludes to the use of a “means test” (imposition of an income limit). As a result, those who belong to a designated backward class may be denied reservation if their income exceeds the set limit. The court ruled with a 6:3 majority that the government of India’s decision to reserve 27 percent of jobs for the socially and economically backward classes, with priority given to the poorer sections of the socially and educationally backward classes in the 27 percent quota, is constitutionally valid. The court reasoned that this would eliminate the creamy layer among the Socially and Economically Backward Classes. The clause that offers 10% reservation for economically disadvantaged individuals among the higher castes, however, was declared unconstitutional by the court.

The Court also concluded that the 102nd Amendment, which included Article 342A, did not deprive the State of its right to designate the socially and educationally backward classes in the State’s list. The prohibition imposed by Article 342A, according to the High Court, only applies to the list compiled by the central government. The existence of a central list of backward classes is distinct from the list prepared by the State for the purpose of translating the enabling power conferred on it, and in any case, Article 342-A cannot be read to control the enabling power conferred on the State under Article 15 and 16, according to the High Court. The Act’s constitutional legality was affirmed by the Bombay High Court. It argued that in exceptional cases supported by measurable evidence, state governments have the authority to enhance reserve above the 50 percent upper restriction.

The Justice Gaikwad Commission report was based on scientific and measurable facts that properly supported both the inclusion of Marathas as a socially and educationally backward class and the extraordinary condition of setting reservations over the 50% ceiling limit. As it did not explicitly overrule any court order, the State Government did not infringe on judicial power. By removing the 2014 Ordinance and Act, it simply eliminated the foundation for the Court’s previous order[6].

The Act passes the Constitution’s reasonable classification test since it offers reservation for the newly designated Marathas, who have been traditionally denied affirmative action, while not unfairly depriving the existing Other Backward Classes. The 102nd Constitution (Amendment) Act of 2018 does not limit state legislatures’ ability to implement Articles 15(4) and 16(4) of the Constitution through a fair and sufficiently effective Commission. The Bombay High Court, on the other hand, struck down sections 4(1)(a)(b) of the 2018 Act, which mandate 16 percent reservation in education and government jobs. The court ruled that reservations in education and public employment should not exceed the Commission’s proposed 12 percent and 13 percent, respectively.

The bench in Janhit Abhiyan v Union of India[7], which was referred to a bigger bench because of the 10% reservation imposed by the 103rd constitutional amendment, abstained from expressing any observations about the effect and consequence of the 103rd constitutional amendment. The Constitution court in K. Krishna Murthy and others v Union of India[8] imposed a 50% vertical reservation ceiling in favor of SC/ST/OBC in the context of local self-government. It did, however, make an exemption in order to protect the interests of STs in the Scheduled Area.

The Gaikwad committee erred in interpreting the Supreme Court’s decision in M. Nagaraj[9], which said that the 50 percent limit might be exceeded based on measurable facts. The court pointed out that the Supreme Court did not establish such a ratio in M. Nagaraj. The entire premise for the commission’s decision to exceed the 50% restriction is that, because the population of the backward class is between 80 and 85 percent, reserving seats for them under the 50% limitation would be unfair to them.

Indeed, several of the Gaikwad Commission’s conclusions, which were replicated in the Bombay high court decision, are devoid of basic sociological understanding and appear to be inconsistent. According to the judgment, the Gaikwad committee discovered that dabbawalas’ client base was dwindling, forcing some of them to seek alternate employment. According to the judgment, “94 percent of Maratha households do not participate into widow/widower remarriage in family,” which is the highest among castes.

The absence of widow/widower remarriages in the past was owing to the custom of ritually high-ranking groupings. It wasn’t as much of an issue among lower castes, however some of them embraced the practice in order to gain social mobility by imitating upper castes. The Gaikwad Commission seems to have conflated conservatism with social illiteracy. According to the ruling, the panel discovered that “holdings of agriculturists [in Maharashtra] have declined over time due to ceiling regulations as well as family partitions.” However, most agricultural communities, not all of whom are socially backward, have land fragmentation. This is due to the fact that land ownership is a key predictor of social rank. With 78.86 percent of Maratha families having land, they can’t possibly be in a state of extreme socioeconomic backwardness. What matters is figuring out which caste owns what percentage of land in a hamlet or taluka. A caste’s standing is expected to rise with the amount of land it owns in a hamlet or taluka.

In the midst of an economic downturn, a social group does not become socially backward. There will always be affluent and poor individuals in a community, as Justice Krishnan stated. A group may also experience downward mobility. However, that cannot be used as a criterion for labeling it as socially backward. Reservation is also not a tool for alleviating poverty or halting a social group’s economic collapse. The Marathas’ position as an agricultural caste has not prevented them from competing for government jobs. It casts doubt on the community’s claim to be socially backward. The decision of the Bombay high court is another sign that India is flipping the quota policy on its head and heading toward proportionate representation of castes in jobs and education.

APPEAL BEFORE SUPREME COURT

Appeals to the Supreme Court were filed against the High Court’s decision. The Supreme Court sent notice to the State of Maharashtra in the appeals in July 2019. A three-judge bench referred the case to a Constitution Bench in September 2020, citing the constitutional problems involved in the case. On March 8, 2021, the Supreme Court decided to hear all states in the case after Senior Counsel Mukul Rohtagi, Kapil Sibal, and Dr. AM Singhvi argued that the case involves a question that affects all states because any decision in the case could affect the state’s ability to grant reservation to socially and educationally backward classes[10].

ISSUES HEARD BY SUPREME COURT

The issues heard in Jaishri Laxmanrao Patil v. Chief Minister[11] case was whether the verdict in Indra Sawhney v. Union of India should be referred to a bigger bench or re-examined by a larger court in light of later Constitutional Amendments, judgements, and altered societal dynamics. Whether the SEBC Act of 2018 as modified in 2019 grants the Maratha community 12 percent and 13 percent quota in addition to 50 percent social reservation, as anticipated by the Constitution Bench in Indra Sawhney’s case, is covered by exceptional circumstances[12].

Whether the State Government has put out a case of presence of unusual situation and exceptional conditions in the State to come under the exemption carved out in the decision of Indra Sawhney based on the Maharashtra State Backward Commission Report headed by M.C. Gaikwad. Whether the 102nd Amendment to the United States Constitution deprives the State Legislature of the right to pass legislation defining the socially and economically disadvantaged groups. Whether Article 342(A) read with Article 366(26c) of the Indian Constitution limits states’ ability to regulate in respect to “any backward class” under Articles 15(4) and 16(4). Whether Article 342A of the Constitution deprives states of their ability to regulate or categorize “any backward class of citizens” and thus has an impact on India’s federal policy and structure.

JUDGMENT

The decision was made on May 5, 2021. The bench had a unanimous opinion. They argued that the 50% reservation restriction should not be revised. The Gaikwad Commission, the Bombay High Court’s decision, and the SEBC Act all fail to define an “exceptional scenario” that would qualify for an exemption to this restriction[13]. As a result, the SEBC Act is invalidated insofar as it identifies and provides reservations to Marathas. They claimed that the 102nd Constitutional Amendment does indeed deprive states of the authority to classify people as “backward.” Only the President has the authority to provide a list that names them, which Parliament can then alter. States are limited to making suggestions. However, the current configuration will remain until such notification is published, which should be done as soon as possible.

Articles 338B and 342A were added to the Constitution by the Constitution Amendment Act. The newly created National Commission for Backward Classes is dealt with under Article 338B. Article 342A gives the President the authority to designate a state’s socially and educationally disadvantaged communities. It states that the inclusion of a community on the Central List for socially and economically disadvantaged groups for the purpose of granting reservation benefits is up to the Parliament. The court had looked at whether Article 342A took away the jurisdiction of state legislatures to put their backward groups in the State Lists. Only the President, Justice Bhat agreed, may modify the Central List of socially and economically disadvantaged groups based on data provided by numerous sources, including the National Commission for Backward Classes. Only “suggestions” might be made by the states. The President was the sole person in charge of the “ultimate exercise” of incorporating castes and communities. As a result, there was no longer any need to address the impact of Article 342A or any other issue. However, given the interpretation of Article 342A was the foundation for the Constitution Bench’s referral, it may have been obligated to respond. This is still a shaky foundation for constitutional decision-making. As mentioned in Mathai vs George, a reference might be returned as unneeded.

However, Justices Bhushan and Nazeer ruled that Parliament did not intend to deprive states of their ability to define their backward classes. Nonetheless, they maintained the Amendment Act’s legality. In light of the MSBCC findings, the State Government is justified in using its enabling authority under Articles 15(4)(5) and 16(4) of the Constitution to provide for a special quota for the Maratha group. However, the 16 percent reserve set forth in Sections 4(1)(a) and 4(1)(b) of the SEBC Act is unjustifiable, and as a result, the amount of reservation under the aforementioned provisions over and above the Commission’s proposed 12 percent and 13 percent is quashed and set aside.

102ND AMENDMENT

The bench’s divided decision on the interpretation of the 102nd Amendment was the least persuasive.  While agreeing with Justices Ashok Bhushan and S. Abdul Nazeer on the subject of breaking the 50% ceiling, the majority justices, Justices L. Nageswara Rao, Hemant Gupta, and S. Ravindra Bhat, differed on whether the 102amendment deprives states of the right to define backward classes. The Bombay High Court concurred with Justice Bhushan and Nazeer that the 102nd Amendment does not take away Maharashtra’s legislative authority.

However, Justices Nageswara Rao, Hemant Gupta, and Ravindra Bhat ruled that the 102nd Amendment deprives the state legislature of its enabling power to make legislation designating the SEBCs (socially and economically backward classes) and conferring benefits on the community[14].

The National Commission for Backward Classes (NCBC), formed under Article 338B, would be the only authority to which the Centre and states must resort in all policy concerns, including the designation of castes or groups as backward classes. According to the majority judges, the new commission (NCBC) is anticipated to play a key role in the creation of lists that the Constitution designated as one list, understood to be the list of SEBCs for the purposes of the Constitution in respect to each state and Union Territory.

States no longer have the authority to identify SEBCs as a result of the 102nd Constitution Amendment. The amendment brought about a change in the existing BC regime, bringing it in conformity with Articles 341 and 342 of the Constitution. The SEBCs are those who are designated by the president by public announcement for the purposes of a state or Union Territory under Ar.342A sub-clause (1). Justice Bhat reasoned in his separate judgment, with which Justices Rao and Gupta agreed, that the parliament inserted the phrase “central list” in clause (2) of Article 342A only to emphasize the fact that after the 102nd amendment, the only list that shall be drawn for the purposes of SEBCs is the central list drawn by the president.

Article 342A, according to the Centre, only applies to the central government list. Its argument that, in light of the ambiguity, it should depend on external assistance such as discussions in parliament to interpret the legislation was not persuasive to the majority of judges, who preferred to comprehend the statute literally. However, under Article 342A, governments have the right to offer proposals and gather evidence – if required, through statutory commissions – in order to make recommendations to the president about the inclusion or exclusion of castes and groups.

The president’s power to identify SEBCs, which was previously exercised by the states but has now been shifted to the president by virtue of Ar342A, does not in any way violate the Constitution’s essential features or basic structure; the 102nd amendment is also not contrary to or in violation of the proviso to Ar368 (2), which requires ratification by a majority of states if the change affects specific provisions that have an impact on the states’ rights.

CONCLUSION

The Bench, led by Justice Ashok Bhushan, determined that there were no “exceptional circumstances” or “special condition” in Maharashtra that compelled the Maharashtra government to exceed the 50% ceiling limit in order to provide quota advantages to the Maratha population. The 2018 Act, as modified in 2019, giving quota to the Maratha group makes no provision for exceeding the ceiling restriction of 50% reserve. The 2018 Act breaches equality principles and surpassing the 50% ceiling restriction obviously violates Articles 14 and 15 of the Constitution. The Court also decided that the decision in Indra Sawhney v. Union of India does not need to be transferred to a bigger bench, and that the 50 percent reservation ceiling set in Indra Sawhney is good law.

The Supreme Court has overturned the Bombay High Court decision that validated the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018 and struck down the findings of the Justice N.G. Gaikwad Commission, which led to the enactment of the Maratha quota law. Justice S. Ravindra Bhat took a “different opinion” from Justices Bhushan and S. Abdul Nazeer in the second portion of the ruling on the constitutionality of the 102nd Constitution Amendment. The Court considered whether the Constitution (One Hundred Second Amendment) Act of 2018, which established the National Commission for Backward Classes, infringed on state legislatures’ ability to help socially and educationally disadvantaged people in their jurisdiction.

Reservations are for parity, not charity, to repeat an oft-repeated adage. The Court has assured that the instrument of reservations does not become an exercise in spreading political favors among dominant castes but is retained for social justice objectives by affirming the criteria put forth in Indra Sawhney on these elements.


[1] Krishnadas Rajagopal, “Supreme court declares Maratha quota law unconstitutional” The Hindu, May 09, 2021

[2] Sonam Saigal, “Gaikwad report on Maratha Quota most reliable” The Hindu, March 14, 2021

[3] Clara Lewis, “Gaikwad Commission declares Maratha community as socially and educationally backward” The Times of India, November 29, 2018

[4] Shubhangi Khapre, “Explained: How Marathas got reservation, and what happens now” Indian Express, May 11, 2021  

[5]  Indra Sawhney v. Union of India, (1992) Supp. (3) SCC 217

[6] Bombay High Court Confirms Maratha Quota, But Says 16% Not Justifiable available at: https://www.ndtv.com/india-news/bombay-high-court-confirms-16-per-cent-quota-for-marathas-in-jobs-educational-institutions-in-mahara-2060191, June 19, 2021

[7] W.P.(C)No.55 of 2019 etc.
[8] W.P. (C) NOS. 245 OF 1995 AND 517 OF 2005
[9] Writ Petition (civil)61 of 2002

[10] Maratha Reservation, available at: https://www.scobserver.in/court-case/maratha-reservation (last visited on June 18,2021

[11] SLP (C) 15737/2019

[12] Shoumojit Banerjee, “Maratha reservation issue: is appointment, anger over supreme court judgment” The Hindu, May 05, 2021

[13] Supreme court strikes down Maratha reservation, available at: https://www.indiatvnews.com/news/india/maratha-reservation-case-supreme-court-judgement-verdict-hearing-updates-702545

[14] States cannot add any caste to backward list: supreme court, available at: https://www.ndtv.com/india-news/102-constitutional-amendment-supreme-court-says-states-cannot-add-any-caste-to-backward-classes-list-2429839

Author: Yashi Sharma, Bennett University, Greater NoidaGI

Editor: Kanishka VaishSenior Editor, LexLife India

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