In a landmark judgment in the case of Dr Jishri Laxmnarao Patil, a two-judge Bench of Bombay High Court has upheld Maratha reservation in Maharashtra. The judgment, reserved on March 26, was delivered on June 27 by Justices Ranjit More and Bharati Dongre. Since the Second National Backward Classes Commission, popularly known as the Mandal Commission, and two State Backward Classes Commissions had refused to recognise Marathas as a backward class and as many as 12 chief ministers belonged to the Maratha community, upholding of reservation in favour of Marathas has surprised many constitutionalists. Moreover, in the past, reservation on the basis of similar recommendations in favour of Jats, Gujjars, Patidars and Muslims had failed the judicial test.
In the very first statement of 482-page judgment, the court talked of the challenge before modern democracies – “complex task of providing social justice to sections that have been traditionally discriminated against, while affirmative action does not hinder opportunities offered to the rest of the population”.
The case involved several constitutional issues such as determination of Marathas as a backward class on the basis of quantifiable data; constitutional validity of the Act providing for their reservation; validity of extraordinary circumstances that justify going beyond the judicially created 50% reservation rule; limits of judicial review in examining affirmative action policies of the state and the effect of powers given to the National Commission for Backward Classes in 2018 after its conversion from a statutory authority to a constitutional body; legality of creation of a new socially and educationally backward class and inclusion of just one caste in this class; and, assuming Marathas are backward, their non-inclusion in the existing OBC category.
Backward or not
The Mandal Commission, which listed 128 communities as backward, identified Marathas as ‘forward’. The Khatri Commission (1995) constituted by the Maharashtra government held by majority that Marathas may not be included as Kunbis in the list of OBCs, but recommended that people entered as Kunbi-Maratha or Maratha-Kunbi may be given the same benefits as the Kunbi caste. The request of treating Marathas at par with Kunbis was not accepted even in 2000 and Marathas were not included in the central Backward Classes list. In 2008, the Bapat Commission by a 4-2 majority recommended that it would not be proper to include Marathas among OBCs from the viewpoint of principles of social justice.
The state government constituted a non- statutory committee under Narayan Rane, which concluded that the Bapat Commission’s findings were not based on quantifiable data and should not be accepted. The Rane Committee independently collected data and concluded that the Maratha community is socially, educationally and economically backward, and recommended its inclusion among OBCs with separate 16% reservation.
The Governor of Maharashtra on July 9, 2014, promulgated the Maharashtra State Reservation (of seats for admissions in educational institutions in the State and for appointments or posts in the public services under the State) for Educationally and Socially Backward Category (ESBC) Ordinance, 2014. This was replaced with the ESBC Act of 2014 (Maharashtra Act No. 1 of 2015). The Bombay High Court in 2015 stayed implementation of this Act, which has now been upheld.
In 2017, a reference was made to the Maharashtra Backward Class Commission. When its chairman Justice S B Mhase passed away, he was replaced with Justice M G Gaikwad in November 2017. The Gaikwad Commission report submitted on November 15, 2018, found that Marathas are socially, educationally and economically backward and eligible to be included as a Backward Class.
The High Court expressed its satisfaction on the authenticity of the data in the report. The court also discussed at length through comparative tabular analysis why denial of Backward Class status to Marathas by earlier Commissions was wrong.
In social backwardness, the Gaikwad Commission found that 76.86% of Maratha families are engaged in agriculture and agricultural labour, around 70% live in kachcha dwellings, and only 35.39% have personal tap water connections. In educational backwardness, it found that 13.42% of Marathas are illiterate, 35.31% primary educated, 43.79% HSC and SSC, 6.71% undergraduates and just 0.77% postgraduates and professionally qualified. In economic backwardness, the Commission found that 93% Maratha families have an annual income of Rs 1 lakh; 37.38% families are Below Poverty Line against the state average of 24.2%, and 71% own less than 2.5 acres land.
Share in population
Based on its estimate of the Maratha population at 30% of Maharashtra’s total, the Commission had suggested for 12% and 13% reservation to Marathas but the state government of its own adopted 16% reservation. The Commission found that Marathas are about 30% of the state’s population. The court rejected the argument of the petitioners who had argued that 30% is not mathematically correct. If the population of SCs is 13%, that of STs is 11%, and that of OBCs as per Mandal Commission is 52% and if Maratha is added as 30%, it would take the total population over 100%, the petitioners had argued.
Breach of 50% ceiling
Though B R Ambedkar said in the Constituent Assembly that reservation must be confined to a minority of seats, the Constitution does not mention such a ceiling. The judgment quoted Indira Sawhney (1992) and other judgments to say that the Supreme Court permitted going beyond 50% in extraordinary circumstances, and this limit is not exhaustive of all categories of reservation. The High Court relied on Indira Sawhney which had laid down that “while 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristic to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”
In some cases, the courts have not permitted even 1% reservation in excess of 50%, for example Muslim reservation in undivided Andhra Pradesh. Neither is Maharashtra remote or far-flung, nor are Marathas seen as being out of the national mainstream. This portion of the High Court judgment will be challenged in the Supreme Court.
Here the court accepted the Gaikwad Commission’s recommendation that 85% people of the state have now become backward with the inclusion of 30% Marathas and thus are entitled to affirmative action. If the 50% rule is followed, the miniscule forward classes will benefit and their domination will continue.
Separate Backward Class
Since 346 castes are already in the OBC list and entitled to 19% reservation, the court held that adding Marathas with 30% population will not be appropriate. Marathas will then take away the major chunk of seats, and it will adversely affect the interests of existing OBCs. Relying on Indira Sawhney where the Supreme Court had permitted classification between ‘backward’ and ‘most backward’, the High Court approved the creation of a new class for Marathas.
The court also rejected the argument that Socially & Educationally Backward Class is now at par with SC and ST and comparison of Article 341 and 342 with Article 342A, inserted with effect from August 15, 2018, means that this particular class will receive recognition only in the manner set out in the Constitution i.e. Article 342A. The court observed that the 102nd Constitutional Amendment has not taken over the powers of the state to set up its own Backward Classes Commissions and states may validly make reservations without the concurrence of National Commission for Backward Classes or Presidential order for inclusion of any caste.
The interim order
The court rejected the argument that the Maratha reservation is an overruling of the interim order by Bombay High Court in the case of Sanjeet Shukla which had held that in the absence of quantifiable data before categorizsng the Maratha community as a backward class, the increase in reservation was not justiciable. The latest judgment upheld the reservation as a legitimate exercise of legislative power as the government has now collected quantifiable data and analysed it . With this exercise, the judgment concluded, the very basis of the interim order had been validly removed.
The judgment will open the floodgates for reservation in favour of dominant castes in other states. If at all there was a legitimate reason to go beyond 50% reservation, as in the case of Tamil Nadu, it could have been inserted in the Ninth Schedule of the Constitution.
The writer is a well-known expert in constitutional law