Updated: May 7, 2021 7:54:57 am
The five-judge Constitution Bench order that struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, providing reservation for the Maratha community in public education and employment, has significant political and legal implications. The Supreme Court refused to revisit the 1992 Indra Sawhney judgment, which had ruled that the quantum of reservation should not exceed 50 per cent, unless compelled by “extraordinary circumstances”. The Court has held that the 2018 Act violates the principle of equality and by exceeding the ceiling of 50 per cent, goes against Articles 14 and 15 (right to equality and protection against discrimination) of the Indian Constitution.
Maharashtra’s 2018 law was the outcome of a prolonged political campaign by the numerically significant and politically dominant Maratha community. At least three national commissions and three state commissions have rejected its demand for reservation in the past. It has been revived as a political issue in recent years, with parties competing to promise quotas to the group, which continues to dominate in state politics, running of cooperatives and educational institutions and ownership of land. But reservation in Maharashtra had already reached the 50 per cent bar set by Indra Sawhney, and inclusion of the Marathas, estimated to be about 35 per cent of the state population, within the existing OBC quota was fraught with the risk of turning other beneficiary groups restive. Hence, a separate quota was constituted, with the Justice Gaikwad Commission advocating the Marathas’ claim to social and educational backwardness. The apex court has now rejected the Commission’s argument that extraordinary circumstances existed for a Maratha quota — the Court said the data collected and presented by the (Justice Gaikwad) Commission “proves that the Marathas are not socially and educationally backward”. By all accounts, the Commission’s recommendations may have made a more persuasive case for proportional representation rather than social justice. Going ahead, the Maharashtra government should listen to the state’s top bureaucrats who have reportedly advised the leadership to undertake a fresh study to support the Maratha claim for backward status and affirmative action, if it wishes to pursue quotas for the community.
This also brings a moment of reckoning for various other communities, for instance the Patidars in Gujarat, who, in the wake of a deepening distress due to structural transformations in the economy, have been mobilising for quotas. The Constitution has envisaged reservation as an instrument to address historical injustice and discrimination. Ways must be found, however, to address other kinds of disenfranchisement and disadvantage as well. In the end, a resolution to the growing clamour to be declared backward may only lie in the government addressing supply side issues in education and employment. For now, a problematic part of the SC verdict needs to be reviewed — three of the five judges were of the view that only the President will have the power to identify the backward classes in a state or UT. The question, who is backward, and who gets how much, is an important one. The answer can only be found with the participation of states.