Bombay HC upholds Maratha quota: Court's verdict is based on flawed report which discourages constitutionalism

The prolonged debate and discord regarding the Maratha reservation in Maharashtra got a new issue of contention. The Bombay High Court on Thursday upheld the reservation for Marathas in Maharashtra. It, however, quashed the group’s demand of 16 percent quota in the state by calling it ‘not justifiable’. The division bench of Justice Ranjit More and Bharati Dangre said that it should not exceed 12 percent for education and 13 percent for jobs as recommended by the Maharashtra State Backward Class Commission.

The order follows the decision taken on 30 November last year when the Maharashtra legislature passed a bill proposing 16 percent reservation for Marathas under the Socially and Educationally Backward Class (SEBC) category.

It must be stressed here that if the figure of 16 percent is not justifiable, there is also no rationale for the numbers 12 and 13 percent. Both the judiciary and the executive are just shooting in the dark and throwing arbitrary numbers, which they deem fit are just. Any argument on a number like this is altogether against Article 16 of the Constitution itself, which offers protection against arbitrariness.

Representational image. News18

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This move of the government towards the reservation and its subsequent validation by the court raises some serious concerns. The landmark decision of the Supreme Court in Indra Sawhney vs Union of India upheld the amended Article 15 (which prohibits discrimination on the basis of religion, race, caste, sex, place of birth) and Article 16 (equality of opportunity) of the Constitution to insert new clauses that allow the government to make ‘special provision for the advancement of any economically weaker sections of citizens’ other than SC/STs and OBCs.

However, it capped such reservation at 50 percent. With the 16 percent quota for the Marathas, the reservation in Maharashtra increases from 52 to 68 percent, far beyond the 50 percent ceiling set.

Bombay High Court in this judgment states that this Maratha reservation falls within the ‘exceptional circumstances and extraordinary situations’ as carved out in the Sawhney judgment. Hence, the limit of 50 percent can be breached, because it relied on the data of farmer suicides, of which Marathas comprised 40 percent of total farmer suicides. The court, hence, held that such extraordinary reservation is justified.

This is a very wrong precedent which the Bombay High Court has set, especially because the judiciary has long complied with and respected the limits prescribed by the Indira Sawhney judgment, and here, that has also been done away with. The extraordinary conditions, as referred, are at best subjective assessments either by the court or the executive. There is no comprehensive quantitative study undertaken by the state government or any other agency which justifies such an exigency for the community to be given extraordinary reservation.

The study, however, which the judgment cites and upholds, is the Gaikwad commission report. However, the report is very problematic itself. The study undertaken by the commission was not a relative one. It just analysed the state of Maratha community, comparing it to just another community ‘Kunbis’. This is an absolutely flawed methodology to conduct any meaningful research, because it simply ignores the conditions of all other communities before arriving at a conclusion that the Marathas need reservation.

As is adequately apparent, reservations in India have also become a tool for political appeasement perpetuating the malice of vote bank politics, which has been in vogue in India since the advent of democracy itself. However, what is problematic is the attitude of the judiciary.

In any democracy, the primary role of the courts is to protect the constitutional scheme from the ill effects of the democratic system itself, like populist but unhealthy moves of the government. This in legal parlance is also known as ‘constitutionalism’. The executive has to face the electoral test routinely in a democracy but the courts are free from it, and that is for a reason. That reason is not letting the basic tenets of the constitutional scheme be floundered and abrogated by the democratic mandate. For instance, the courts will not allow a democratically elected government and Parliament to abolish democracy itself.

If one refers to the Constituent Assembly Debates (CAD), it is widely apparent that the reservation system was not conceived to be a permanent aspect of the constitutional scheme by the framers of our constitution. Such is the spirit of the Constitution that should have been respected and protected by the judiciary.

The Supreme Court nowadays is routinely using the doctrine of ‘constitutional morality’ to refer to the spirit in which the constitutional provisions were enacted. Ironically, the judiciary, in its entirety, has not yet invoked this doctrine in such cases where it is badly needed, because such reservations are no doubt supported by valid constitutional amendments and statutory framework.

The CAD debates and their arguments can’t be enforced in a court of law, but we know through them, with what intention a provision has been enacted. The courts should respect, protect and enforce this at all cost and this is the foremost duty of the constitutional courts of the country. Instead the courts, regrettably, like in this instance, have routinely protected the politics of the country and not constitutionalism.

(Raghav Pandey is an assistant professor of law at Maharashtra National Law University, Mumbai. Anoushka Mehta is a student at Maharashtra National Law University, Mumbai.)