WHY IN NEWS:
Recently, The Bombay High Court verdict upholding reservation for Marathas in public employment and education which is a major relief to the Maharashtra government.
- In July 2014, the Maharashtra Govt. had passed an ordinance providing for 16% reservation for the Maratha community on the basis of past reservations like Jats, Gujjars, Patidars and Muslims.
- It was challenged before the Bombay High Court, which passed an interim order staying the implementation of the ordinance. This order was then challenged before the Supreme Court, which ultimately dismissed the challenge.
- During the pendency of the matter before the High Court, the State government passed the Educationally and Socially Backward Category (ESBC) Act providing for reservation for the Maratha community.
- On the ground ESBC Act and the ordinance were identical, the High Court stayed the implementation of the former in April 2017. Thereafter, the State Govt. constituted the Maharashtra State Backward Class Commission, which prepared a report and recommended a reservation in favor of the Maratha community. This report forms the basis of the SEBC Act, 2018.
- A Bill calling for reservation for the Maratha community was then tabled in the State Assembly, and the SEBC Act was eventually passed. The Act came to be challenged before the High Court by a host of petitioners.
Commission recommendations of Marathas in reserve quota:
- Mandal Commission, which listed 128 communities as backward, identified Marathas as ‘forward’.
- Khatri Commission (1995) constituted by the Maharashtra Govt. held by the majority that Marathas may not be included as Kunbis in the list of OBCs
- Further, Marathas were not included in the central Backward Classes list.
- Bapat Commission(2008) recommended that it would not be proper to include Marathas among OBCs from the viewpoint of principles of social justice.
The argument against the Reservation · The SEBC Act (2018) was assailed by the petitioners as being a fraud on the Constitution, as it proposed to hike the reservation from 52 percent to 68 percent. As it was a violation of the Supreme Court’s judgment in Indra Sawhney v. Union of India. · The reservation for the Maratha community would affect the seats in the general pool of candidates and that the reservation was nothing but a desperate attempt by political parties to appease the Maratha vote bank. · The SEBC Act was passed based on the recommendations of Justice Gaikwad Commission Report, but the court states that it did not have any empirical data to conclude that the Maratha community is socially and educationally backward.
· The legislative competence of the State to enact such a law was also challenged on the ground that the interim order of the High Court passed in July 2014, staying the implementation of the ESBC Act 2014, was still in effect. · It was also contended that the Act would be in violation of Article 14 of the Constitution, as it involved creating a classification that was not legally tenable. · It was further contended that after the Constitution (102nd Amendment) Act, the State legislature is denuded of its power to declare a particular class to be socially and educationally backward.
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. Hence, High Court expressed its satisfaction on the authenticity of the data that 85% of people of the state have now become backward with the inclusion of 30% Marathas and thus are entitled to affirmative action. Argument in favor Before the High Court, the State rebutted each of the petitioners’ contentions- · Gradual deterioration in educational and social backwardness of Marathas. · Deterioration in income as well as the desperation of families to survive. · Substantial backlog in services under the State · Increase in the number of suicides as a result of form indebtedness and shift to manual labor. · Inability to raise the standard of living as a result of adverse conditions. · It also claimed that the interim order of July 2014 was ineffective, as that matter had become infructuous with the repealing of the ESBC Act, 2014. · The enactment is in consonance with the provisions of Article 16(4A) & 16(4B), the validity of which has been affirmed by the Supreme Court in Nagaraj v. Union of India. · Constitutional Amendment of 2018 does not affect or alter the powers or functions of the State Backward Class Commission. · The highest farmers suicide in the community reflects its plight and the extraordinary situation and exceptional circumstances would justify exceeding the limit of 50 percent if at all it exists Court stands on 50 percent cap on reservation · The Court noted that the 50 percent limit on reservations found mention in Article 16 (4B) inserted by the Constitution (85th Amendment) Act of 2001. · However, the Supreme Court in Indra Sawhney case, held that the 50 percent cap may be exceeded in view of extraordinary circumstances. · Bench noted that the adequacy of representation in the services will have to be proportionate to the portion of the backward classes in the total population. It thus concluded, “The judgment of Indra Sawhney read in its proper perspective and in the benevolence of advancing the cause of the weaker sections under Articles 15 and 16 the Constitution does not impose any fetter on State's power to exceed reservation more than 50% in a deserving case. This is, however, subject to the State providing valid justification in exceeding the limit of 50%.”
Significantly, it has ruled that there were “exceptional circumstances and an extraordinary situation” to warrant the crossing of the 50% limit. However, The judgment will open the floodgates for reservation in favor 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.