Ever since the Supreme Court gave its ruling in the Indra Sawhney case, the complications surrounding the issue of OBC reservations have defied solutions. As I have argued, identifying backwardness, periodic scrutiny of claims to being backward and ensuring fair treatment of those included in the list of backward communities, constituted three challenges emanating from the Mandal discourse (EPW, April 26, 2008). Subsequently, this list of key issues became more complicated by claims from many regionally important peasant communities that they are backward, resulting in crossing the 50 per cent threshold.
Some states have chosen the Ninth Schedule to circumvent the Mandal ruling while others like Haryana, Gujarat or Maharashtra have grappled with ways to overcome the limitations prescribed by it. The latest ruling of the Bombay High Court is bound to lead to a new route for states to accommodate demands of various communities.
At least four questions arise from the Bombay High Court’s ruling. The Court has approved the report of the M G Gaikwad Commission which undertook studies to examine the status of Marathas and made recommendations about the quantum of reservation. The fact that there were earlier commissions, which had a different conclusion, does not seem to have weighed on the Court.
Curiously, the Gaikwad Commission report was not discussed in the public realm and thus the Court did not have the benefit of arguments and counterarguments about approach, method and interpretation. The first question regarding such a policy instrument is this: Can such a far-reaching policy be undertaken without the public having access to the findings of the Commission and without the courts having the benefit of public discussions? Can secrecy and urgency be the basis for policies? For instance, the projected calculations of the population of backward communities, as is quoted in the HC ruling, appear to be tricky, if not altogether problematic. The veil of secrecy has resulted in a non-transparent way of deciding backwardness and arriving at the conclusion about whether a community is adequately represented in administration.
Secondly, the argument of exceptionality is brought into sharp focus by this ruling. It is not clear what constitutes an exceptional situation justifying reservation exceeding 50 per cent. The Gaikwad Commission has apparently taken an ingenious arithmetical approach. In any case, both the Gaikwad Commission and the HC ruling fail to evolve acceptable, substantive criteria of exceptionality. This is likely to open a Pandora’s Box in that all similar claims by other communities (Gujjars of Rajasthan, Dhangars of Maharashtra and so on) could be accepted as being exceptional. Does exceptionality involve extraordinary social or educational discrimination? Does it involve a serious mistake on the part of the Mandal Commission?
Three, the issue of the Maratha quota has brought forward an even more serious issue that the Court has not addressed. Suppose a community is found to be backward and it is not included in the present list of OBCs, what is the justification for creating a separate quota for it? Even if the state were to accept the exceptional situation, necessitating crossing the 50 per cent limit, why is it that one community gets a separate quota? Ostensibly, this would be done in order not to disturb the existing social balance. However, such a strategy effectively means that one community is assured of a guaranteed quota while all others have to compete within the quota. For the 19 per cent reservation for OBCs in the state, all the OBC communities need to compete whereas for the 12 or 13 per cent under the HC ruling, only the Marathas get to compete. This anomaly is bound to become jarring in view of the numeric and political preponderance of the dominant peasant proprietary castes not only in Maharashtra but elsewhere too.
Reservation, so far, has generally been for a class of citizens belonging to various castes or communities. Even the SC and ST quotas are for a group of communities. By upholding the “Maratha quota”, the Gaikwad Commission, state of Maharashtra and the High Court seem to be creating precedence for a community-specific quota. Such a caste- or community-specific quota has a different logic and trajectory from that of a grouping of communities into classes of citizens deserving affirmative action.
Fourth, in the present case, the logic of backwardness on grounds of traditional status appears to be overwhelmed by the logic of backwardness on grounds of contemporary economy. Communities that are mainly rural and numerous are bound to have internal stratification, regional variation and skewed access to resources. All this makes for distress in objective terms, but can hardly be confused with discrimination on grounds of caste. The HC ruling has incorporated a document — an affidavit by the Government of Maharashtra, through the General Administration Department. This affidavit listed five justifications about exceptionality as: Gradual deterioration of backwardness among Marathas, deterioration of incomes, backlog in service of the state, suicides due to indebtedness, and inability to raise standard of living.
Evidently, all these are results of contemporary policies and failures of successive state governments to address the wellbeing of a large section of society. But these are invoked to justify the exceptionality of the extra quota. This tendency of transposing contemporary routes of distress and discrimination onto history tends to undermine the logic behind the social justice policy as understood so far. Precisely this same logic of contemporary distress is being used for the reservation for economically weaker sections. In this sense, we are rapidly moving away from the constitutional logic behind enabling clauses such as Articles 15 and 16. Instead, reservation is seen as the solution to hide distortions of contemporary economic development.
It would be interesting to see how the Supreme Court addresses these and other complicated issues arising from the Maratha quota and the HC ruling. The HC ruling avoids a hard look at the Gaikwad Commission Report; it also avoids critical engagement with the issue of exceptional circumstances. Political establishments have usually adopted the easy option of accommodating the claims of numerous and preponderant communities in order to avoid political stalemates.
But beyond political compulsions, and beyond legality or constitutionality, this issue poses a larger challenge. That challenge is not merely about semantics, about the meanings of “exceptional” or “adequate representation”. It is to realise that such easy routes endanger societal balance (among groups identified as backward) even as they give a false sense that the issue is amicably resolved.
The writer taught political science and is based at Pune