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Written by: Upasana Dash

Edited by: Anubhav Yadav

The Supreme Court has recently referred to a Constitutional Bench, the question of whether states can exceed the 50% limit on quotas that was set by a nine-judge Bench in the landmark Indra Sawhney v Union of India (1992) case. The question will now be taken up by a Bench comprising at least 11 judges.

All this has happened in the backdrop of the petitions filed appealing a 2019 Bombay High Court decision that upheld the constitutional validity of the Maratha Quota under the Social and Educational Backward Classes (SEBC) Act, 2018.

Admissions to educational institutions for the academic year 2020-21 and the appointments to public services and posts under the government shall be made without reference to the reservation provided in the Act. The Court noted that the cancellation of the admissions and employment given under the quota would be difficult and the implementation would cause irreparable damage. There would be no reservation as of this year till the matter is sub-judice in Educational Institutes and Public Administration.

BACKGROUND OF MARATHA RESERVATION

The issue of reservation for Marathas has been lingering for decades. There were multiple demands for giving reservation to Marathas under OBC. However,

โ— Mandal Commission 1979 (Rejected) – Marathas category dominant class should not get reservation.

โ— Khatri Commission1995 (Rejected) – This commission was set up by the Maharashtra Government. Dominant caste of Marathas should not enjoy reservation.

โ— Maratha Kunbi Controversy 2000 – Those Marathas belonging to Kunbi categories get OBC category of reservation. This controversy has gone on for a very long time.

โ— Bapat Commission 2008 (Rejected) – Set up by the Maharashtra Government to know whether Marathas are actually backward and should they enjoy reservation?

It is argued that Marathas are a politically dominant community who make up 32% of Maharashtra’s population. They have historically been identified as a โ€œWarriorโ€ caste with all large landholdings. 11 of the stateโ€™s 19 chief ministers so far have been Marathas. However, division of land and agrarian problems over the years have led to a decline of prosperity among middle, and lower middle-class Marathas. In 2016-17, the Marathas Kranti Morcha (MKM) led 58 silent protests demanding reservations. The second phase of the protest saw a spate of suicides. The backward Marathwada, and Vidarbha region were the worst affected by the protest.

MARATHA RESERVATION: A POLITICAL AIM

In Maharashtra Shiv Sena, Congress, BJP, NCP are supporting Maratha reservation.

โ— Narayan Rane Committee (2014) – It rejected the Bapat Commission Committee findings. The Rane Committee independently collected data and concluded that the Maratha community is socially, educationally, and economically backward, and recommended to get 16% reservation under OBC category. Maharashtra State Reservation for Educational and Socially Backward Category (ESBC) Ordinance, 2014. The Bombay High Court in 2015 stayed implementation of this ordinance and letter Act.

โ— Gaikwad Commission (Maharashtra Backward Class Commission), 2017 report submitted in 2018 found that Marathas are socially, educationally and economically backward and eligible to be included as a Backward Class.

OBSERVATIONS OF GAIKWAD COMMISSION 

โ—76.86% of Maratha families are engaged in agriculture and agricultural labour.

โ—70% live in kuchcha houses.

โ—Only 35.39% have personal tap water connections.

โ—93% of Maratha families have an annual income of Rs 1 lakh or less.

โ—37.38% families are below the poverty line.

โ—71% own less than 2.5 acres of land.

โ—13.42% of Marathas are literate.

โ—35.11% are only primary educated.

โ—43.79% are HSC.

โ—Only 6.71% undergraduates.

โ—And 0.77% postgraduates.

Based on the recommendations of Gaikwad Commission, Maharashtra assembly passed the SEBC Act, 2018 granting 16% reservation of Marathas. Bombay High Court in 2019 upheld reservation for Marathas in the state but quashed the 16% terming it โ€œnot justifiableโ€. The Court ruled that it should not exceed 12% for education and 13% for government jobs as recommended by Maharashtra State Backward Class Commission (Gaikwad Commission).

Recently, the Supreme Court referred the Maratha Reservation matter to a larger bench, no Maratha Quota in jobs and admissions for now. The reservation percentage has been exceeding 64-65%, before it was only 52%. Among them 19% are OBC, 13% SC, 7% ST, and 13% SBC. 

If at all there was a legitimate reason to go beyond 50% reservation, as in the case of Tamil Nadu where total Reservation percentage stands at 69% or Arunachal Pradesh where reservation percentage stands at 80% reservation for Scheduled Tribes. In some cases, the Court had not permitted even 1% reservation in excess of 50%, for example Muslim reservation is undivided in Andhra Pradesh. Except Marathas, Patel’s in Gujarat, Jat’s in Haryana, and Kapus in Andhra Pradesh are facing the same issues on reservation.

A 5 judge Constitution Bench headed by Justice Ashok Bhusan is currently hearing the challenge to the Maharashtra law providing quotas for Marathas in job and admissions in the state. Two main constitutional questions for the court to consider in the challenge to the Maratha quota law; 1. Whether states can declare a particular caste to be a socially and educationally backward class.2. Whether states can breach the 50% ceiling for โ€œvertical quotasโ€ set by the Supreme Court.

The court reiterated the 50% limit to vertical quotas it had set out in earlier judgment in M. R Balaji v State of Mysore, 1963 and Devdasan v Union of India, 1964. Reason being that it is needed to ensure โ€œefficiencyโ€ in administration. The court said this 50% limit will apply unless in โ€œexceptional circumstances”.

Based on the 102nd Amendment to the Constitution, which gives the President a power to notify backward classes, the court will have to look into whether states have similar powers [Article-338(B)]. However, the court will have to test if the Maharashtra law qualifies to be an exception.

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