Maratha Reservation and the Reservation Policy in India – Explained, Pointwise

Introduction

A five-judge Constitution Bench of the Supreme Court recently held the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018 as unconstitutional. This Maratha reservation law provides reservation benefits to the Maratha community in admissions and government jobs. However, the implementation of this reservation took the quota limit in the State in excess of 50%. The Supreme Court also held that this law does not qualify for the “exceptional circumstances” mentioned in the Indra Sawhney case.

Earlier the Supreme court mentioned that it may re-examine the 50% reservation cap set by the Mandal case ruling of 1992(Also known as Indra Sawhney case). But during the recent verdict, the court mentioned that there is no need to revisit the 50% reservation cap. The court mentioned that the arbitrary 50% ceiling set by the Mandal case is now constitutionally recognized.

What is the Maratha reservation policy?

Maharastra government appointed a nine-member Maharashtra State Backward Class Commission headed by Justice M.G. Gaikwad. The commission recommended reservation for the Marathas in 2018.

In 2018 itself, the Maharashtra government enacted a law, it provides 16 percent reservation to the Maratha community in jobs and admissions. The law termed the Maratha community as a socially and educationally backward class (SEBC). However, the Maratha reservation violated the 50% ceiling mentioned as in the Indra Sawhney case.

The law was challenged in Bombay High Court. The Bombay High Court upheld the constitutional validity of the Act. But the Bombay High Court reduced the Maratha reservation to 12% in education and 13% in employment (Instead of 16%).

However, an appeal was filed in the Supreme Court. In that case, the Supreme Court held that the reservations is unconstitutional.

About the Maratha reservation case judgment

The case addressed few key questions around the reservation policy in India. Such as,

• Revisiting the Indra Sawhney ruling: Few of the State governments argued that the limit of 50% reservation set in the Indra Sawhney case was arbitrary. Earlier during the hearing of the Maratha reservation case, the Supreme Court also suggested that it might revisit the Mandal case judgment. But, in the judgment, the court held that the arbitrary ceiling of 50% is now constitutionally recognized. Therefore, the court held that there is no need to re-examine the 50% cap of the Mandal case.
• Maratha law was not an exceptional circumstance: The court held that both the Maharashtra State Backward Commission report and the High court judgment have not mentioned the situation for exceeding the 50% cap. Further, the court also held that the Marathas are the dominant forward class and are in the mainstream of National life. So, this reservation does not qualify for exceptional circumstances.
• Power of State to declare a community as backward:
  • The Supreme Court unanimously upheld the constitutional validity of the 102nd Amendment Act, 2018.
  • Further, the court held that the 102nd Constitution Amendment has taken away the power of states to identify Socially and Educationally Backward Classes (SEBCs).
  • It means that the Centre alone is empowered to identify SEBC and include them in the Central List
  • The States could only make suggestions to the President or the statutory commissions for inclusion, exclusion, or modification of castes and communities to be included in the SEBC List.
  • This raises the question of validity on other states’ laws like reservation laws in Haryana, Tamil Nadu, etc.
• The court also held that the special reservation violates Article 14(Right to equality) and Article 21(due process of law)

Other Judicial interventions on reservation policy

1. The state of Madras vs Smt.Champakam Dorairajan (1951) case: In this case, the court held that the caste-based reservations violate provisions of Article 15(1). Article 15(1) provides for non-discrimination of the State against citizens based only on religion, race, caste, sex, place of birth, or any of them.
   This resulted in the First Constitutional Amendment. The Parliament amended Article 15 to include provisions of reservation under Article 15(4).
2. M R Balaji vs State of Mysore case 1963 and Devadasan v Union of India case 1964: In these cases, the court held that the efficiency of public administration is essential. Further the court asked the government to maintain the reservation to 50%
3. Indra Sawhney vs Union of India Case 1992: In this, the court held that the reservation should not exceed 50 per cent in total, unless in exceptional circumstances. Further, the Court held to remove the creamy layer among OBCs from the reservation. Apart from that, the Court also held that there should not be reservations in promotions.
   But the government enacted the 77th Constitutional Amendment Act(CAA) to provide reservations for SCs and STs in Promotion(Article 16(4A)).
4.  M. Nagaraj vs Union of India case 2006: In this, the court upheld the 77th CAA. But the court also mentioned certain conditions to be maintained in such reservation. Such as,
   • The reservation policy shall not affect the overall administrative efficiency
   • Reservation is applicable only when the SCs and STs are not adequately represented in public employment.

Reservation in India

1. Under the powers conferred by Article 340, President appointed a B. P. Mandal headed backwards class commission in 1978. The Commission suggested a 27% reservation in government jobs for the Other Backward Classes(OBCs). As 52 percent of the country’s population consisted of OBCs.
2. In 1990, the government accepted the recommendations of the Mandal Commission and implemented them. By this, the reservation in India raised to 49.5 per cent.
   • 22.5% reservation for SCs and STs (7.5% for STs, 15% for SCs)
   • 27% reservation for the OBCs
3. In 1991, the government enacted provisions for the reservation of 10% of jobs for economically weaker sections (EWS) among higher caste people. But, in the Indra Sawhney case or Mandal Case, the supreme court struck down this provision. Further, the case also provides for the maximum reservation of 50% in total. However, the case also held that the reservations can go beyond 50% under exceptional circumstances.
4. The government under the 103rd Constitution Amendment Act, 2019 again provided a 10% reservation for the EWS in India. The Act also amended Articles 15 and 16 correspondingly.

So at present, the total reservation stands at 59.5 percent. Few State governments also provide the reservation over and above 59.5 percent.

Implication of Maratha Reservation Judgement

1. The implication of the 102nd Constitutional Amendment Act: As the judgment upheld the constitutional validity of the 102nd Amendment Act, the President alone has the power to notify backward classes from now on. Apart from that, the Central List will now be the “only list” for the SEBC. This means that the Centre alone is empowered to identify SEBC from now on.
2. The question of constitutional Validity of the 103^rd Amendment: This amendment provides for 10% reservation for the EWS in government jobs and educational institutions from the unreserved category. The Maratha reservation judgement mentioned 50% as the cap for reservation. But after the enactment of the 103rd Amendment Act, the total reservation now stands at 59.5 per cent. This is a clear violation of the Indra Sawhney judgement.

3. The constitutional validity of State reservation laws

The judgement mentions that the States can only make suggestions to the President or the statutory commissions. But several states have enacted various local reservation laws. Their constitutional validity was in question after the Maratha reservation judgement. States having such laws include,

• • The Tamil Nadu Backward Classes, SCs and STs Act, 1993: By this Act, the Tamil Nadu government provided 69 percent of reservations in educational institutions and jobs in the state government. The State further get the ascent of President and placed this law in Schedule IX of the Constitution.
  • As the Law placed itself in the Ninth Schedule, it could not be challenged in court for the violation of fundamental rights. However, the Court in the I R Coelho v State of Tamil Nadu case held that the Laws in Ninth Schedule can be challenged for the violation of the basic structure of the Constitution. The Supreme court is yet to decide the case of Tamil Nadu reservation law.
  • Haryana and Chhattisgarh have also passed laws providing reservations in excess of the 50 percent reservation mark. These laws also challenged in the Supreme Court.
  • Apart from these legislations, there are many protests from various parts of India demanding special reservations above the 50 percent limit. Few examples are,
    • Patels in Gujarat,
    • Jats in Haryana,
    • Kapus in Andhra Pradesh

Solutions

1. As mentioned by the judgment itself the National Backward Classes Commission must publish a fresh list of SEBCs, both for states and the central list. Till the publication, the existing lists operating in all states and union territories can continue.
2. The government has to subclassify the Backward Classes like in Tamil Nadu, Andhra Pradesh, West Bengal etc. This will provide the benefit to intended beneficiaries. Since the government has already appointed Justice G Rohini Panel on Sub-categorisation of OBCs.  The Panel has to fast pace the sub-classification process.
3. The government has to remove the well-off sections from the reservation policy. The government can achieve this by moving away from reservation based on a citizen’s conditions rather than community-based reservations

In conclusion, the government has to understand that the reservation policy is a temporary measure in the direction of social inclusion. The government can achieve Social inclusion by better education policies, enhancing the skill development of backward communities, not by providing more reservations. So, providing more and more reservation gradually is itself not a permanent solution.