On May 5, the Supreme Court rendered a unanimous verdict on the validity of the SEBC Act, 2018 that was passed by the Maharashtra Legislative Assembly to grant reservations to Marathas. The court held that the classification of Marathas as a socially and educationally backward class was unreasonable as they belonged to a politically dominant caste with significant economic resources. The court also concluded that the majority opinion in the Indra Sawhney case was correct and that the limit of 50 per cent for caste-based reservations did not need consideration by a larger bench.
The court justified the fixed quantitative limit on caste-based reservations by postulating that it was intrinsic to the fundamental principle of equality. It assumed that exceeding the 50 per cent limit would be a “leap in the dark” and would lead to a society based on “caste rule”. Stressing the need to safeguard the interests of unreserved sections and a “presumption” that all sections have progressed after 70 years of independence, the court rejected the state’s argument that the breach of the limit was necessitated by the fact the population of backward classes was over 80 per cent. This episode is one more missed opportunity by both – the state and the court – to acknowledge the growing socio-economic differentiation within the dominant castes, something the leaders of these castes do not recognise either.
All these three actors continue to consider jatis as blocs, which is particularly misleading in the case of the Marathas. Kalaiyarasan A. and C Jaffrelot have already shown, using the Indian Human Development Survey that OBCs and even Dalits were catching up with the poor Marathas – who do not form a small minority (“Quota, old plus new”, The Indian Express, 2 March 2019).
If in 2011-12, the average per capita income of the Marathas was second only to the Brahmins at Rs 36,548, against Rs 47,427, their highest quintile (20 per cent of the caste group) got 48 per cent of the total income of the Marathas with a mean per capita income of Rs 86,750. The lowest quintile earned 10 times less (Rs 7,198) and the 40 per cent poorest got less than 13 per cent of the total income of the caste — and were lagging behind the Scheduled Castes elite. In fact, the mean incomes of the highest Dalit quintile, Rs 63,030, and that of the second-highest, Rs 28,897, were above those of the three lowest quintiles of the Marathas.
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This is partly due to changes on the education front. While the percentage of Brahmins who were graduates and above was about 26 per cent in 2011-12, it was only at 8.1 per cent among the Marathas. During 2004-05 to 2011-12, Dalits and OBCs have gained at a faster rate in education. The percentage of graduates among Dalits in 2004-05 was 1.9 per cent and has more than doubled to 5.1 per cent in 2011-12; the corresponding figure for the OBCs was 3.5 per cent and has doubled to 7.6 per cent, while for the Marathas it was 4.6 per cent in 2004-05 and has come up to 8 per cent in 2011-12. Correlatively, the percentage of salaried people among the Dalits was about 28 per cent in Maharashtra in 2011-12, as against 30 per cent among the Marathas.
Thus, the Court refused to recognise the need for positive discrimination of the lower classes of the dominant castes which continue to be seen as a dominant bloc. It fails to admit the complexity that the role of class has introduced in post-liberalisation India. This unequivocal confirmation of a dated approach to social realities and a purely arithmetic limit that finds no expression in the Constitution. In response to the state’s contentions about changed social realities, the court stated: “There can be no quarrel that society changes, laws change, people change but that does not mean that something good and proven to be beneficial in maintaining equality in the society should also be changed in the name of change alone.”
The court ignored the cautionary note struck by Justice Pandian’s concurring opinion in Indra Sawhney where he had expressed doubts about judicial supremacy in the broad area of social policy as it could lead to undesirable exclusion of beneficiaries. This note assumes importance in light of the current imbroglio where the Maharashtra government responded to this judgment by cancelling the reservations in promotions for SC/ST and OBCs. After protests, this order was withdrawn but the conflict surrounding reservations and equitable representation has assumed greater proportions thanks to the court’s retrograde judgment.
The judgment represents the culmination of decades-long judicial impatience with the principle of proportionate representation. The court seems to have forgotten its own observation in NM Thomas (para 120) that functional democracy postulates participation of all sections of the people and fair representation in administration is an index of such participation. It had also acknowledged the inequality of birth and posited the idea of proportionate equality. So, the court has only relied on the strand of jurisprudence that restricts the scope of beneficiaries to communities that had faced backwardness and exclusion akin to SC/STs. It has rejected the determination of Marathas as backward by holding that their relative deprivation and under-representation with regard to other sections of the general category did not entitle them to affirmative action. It relied on its decision to reject reservations for the Jat community and affirmed: “…a self-proclaimed socially backward class of citizens or even the perception of the ‘advanced classes’ as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness”. The court considered that poor Marathas, Jats and Patels are “self-proclaimed” backward people because it does not accept the official data. Thus, it refused the state government’s contention that Marathas were lagging in professional higher education attainments and senior positions in public services. The Court may recognise the growing social differentiation of dominant castes if a proper caste census was organised – and made public.
Dhawan is a student of National Law School of India University, Bangalore and Jaffrelot is senior research fellow at CERI-Sciences Po/CNRS, Paris, professor of Indian Politics and Sociology at King’s India Institute, London
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