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Maratha quota row: Reservation unwarranted; several past panels concluded community is not 'backward'

Recently, the Maharashtra State Backward Class Commission recommended 16 percent reservation to Marathas in addition to the existing 52 percent reservation for other backward classes (OBCs). It is expected that the reservation Bill for Marathas will be passed in the Winter Session of the Maharashtra state Assembly. It is worth exploring whether the proposed reservation for Marathas is permissible under the Indian Constitution, as it will have implications on other communities which have been demanding reservation such as Kapus in Andhra Pradesh, Jats in Haryana and Patidars in Gujarat.

History of the demand for Maratha reservation in Maharashtra

Historically, Marathas have identified themselves as descendants of Chhattrapati Shivaji who was considered a ‘kshatriya’ (warrior). At present, only the Kunbi Marathas (considered members of an agrarian sub-caste) can avail of reservation under the OBC category.

The agrarian crisis in Maharashtra, which affected Maratha land-owners, resulting in farmers’ suicides due to indebtedness. Unemployment was one of the major factors triggering the demand for reservation for Marathas as a backward class in Maharashtra.

Representational image. PTI

A protest by Maratha groups in Mumbai. File image. PTI

In July 2008, the Maharashtra State Backward Class Commission headed by retired Justice RM Bapat in its 22nd report had rejected the categorisation of Marathas as OBCs. The Bapat Commission, while assessing the socio-economic situation of the Maratha community, had found that Marathas formed the ruling class in the state and were not backward. The commission noted that certain sections of any community would always be backward. Dr. Raosaheb Kasbe, who was part of the commission, differentiated between classes that faced social stigma and those that did not, like the Maratha community; he recommended that the latter could be provided reservation only on economic grounds and not by classifying them as OBCs.

In Jagannath Hole v. State of Maharashtra (W/P 4476 of 2002), the Bombay High Court differentiated between Kunbi Marathas and other Marathas, holding that only the former could avail of reservation as OBCs.

The Maharashtra state government did not table the Bapat Commission report in the state legislatures as required under the Maharashtra State Backward Classes Commission Act, 2005 and instead set up a new commission under Justice BP Saraf to look at the issue of whether Marathas should be treated as a “backward class.” The Saraf Commission too rejected the characterisation of Marathas as backward.

The demand for reservation for Marathas did not abate with time, and the Maharashtra government set up a special committee in 2014, namely, the Rane Committee (headed by the then industry minister Narayan Rane, who was himself a member of the Maratha community) to submit its report. The Rane Committee report recommended reservation for Marathas in educational institutes and jobs without affecting the reservation granted to OBCs in these sectors. This was arguably the first time where a committee on the issue of reservation for Marathas had carried out a quantitative analysis, surveying four lakh families, while 18 lakh people were contacted through various media.

In June 2014, the Maharashtra state government approved a proposal to allow 16 percent reservation in government jobs and educational institutes outside of the OBC quota to Marathas, a move which many considered as an attempt on the part of the ruling Congress-Nationalist Congress Party (NCP) to appease Maratha voters ahead of the state Assembly elections. The Bombay High Court stayed the government’s decision in November 2014 in response to a PIL filed by former journalist Ketan Tirodkar and others, on the ground that the data which the Maharashtra government relied on to justify that the Maratha community was socially and economically backward to warrant reservation was faulty. The high court also referred to earlier Supreme Court precedents which have capped total reservation in a state (for Scheduled Castes (SCs)/Scheduled Tribes (STs)/OBCs and special categories) at 50 percent.

In September 2016, it was reported that the Bombay High Court had refused to hear the PIL filed by Tirodkar, although the court stay on the government’s decision to provide reservation remained in operation.

In August 2018, another PIL was filed in the Bombay High Court by Vinod Patil, a Maratha activist, who sought directions to the Maharashtra government and the Maharashtra State Commission for the Backward Classes to formulate a time-bound plan to implement the quota for Marathas in view of the suicides and violent protests by Maratha youth demanding quotas.

The Supreme Court’s 50 percent ceiling on reservation

The landmark case on reservation in India is Indra Sawhney (I), also known as the Mandal case (1992 Supp (3) SCC 217) where the Supreme Court pegged the maximum reservation for all communities at 50 percent. A writer notes that the first case in India which fixed the ceiling on reservation at 50 percent is a 1962 case, MR Balaji v. State of Mysore. The Supreme Court reiterated the 50 percent cap on total reservation in state government services for all communities in July 2007 and in April 2008. It is argued that the Mandal case envisages the possibility of reservation exceeding 50 percent in “certain extraordinary situations”.

Maratha Kranti Morcha members protesting in Solapur. File image. PTI

Maratha Kranti Morcha members protesting in Solapur. File image. PTI

Interestingly, state governments have attempted providing reservation in excess of the 50 percent ceiling set by the Supreme Court. Tamil Nadu is a notable example where, under former Chief Minister Jayalalithaa, the total reservation increased to 69 percent. Tamil Nadu achieved this by passing the Tamil Nadu Act of 1994 which increased quota in Tamil Nadu to 69 percent and by adding the 1994 Act to the Ninth Schedule of the Constitution. According to Article 31B of the Constitution, legislations in the Ninth Schedule cannot be challenged in courts. However, in 2007, the Supreme Court in IR Coelho v. State of Tamil Nadu ruled that even those laws which are placed in the Ninth Schedule are subject to judicial review if the laws violate the basic structure of the Constitution. A petition challenging the Tamil Nadu reservation policy is pending before the Supreme Court and is expected to be taken up in November this year.

Criteria for considering a class as socially and economically backward for the purpose of reservation

The test developed by Indian courts for determining “backward” classes is convoluted and ranges from State of Madras v. Champakam Dorairajan (1951), which rejected caste as the sole criterion to determine backwardness of a class, to the Mandal case (1992) which upheld caste-based reservation. The Mandal case has been criticised for the importance placed by the majority on the caste-occupation-poverty nexus to allow caste as a determinative factor in judging the backwardness of a class of citizens. It is argued that the majority, in doing so, blurred the distinction between class and caste as used in the Indian Constitution — under Article 16(4), the State may make reservation in favour of any “backward class of citizens.”

As far as the Maratha community is concerned, the findings of many commissions which were tasked with recommending reservation for them are that Marathas are forward classes, with many community members in top political ranks, heading businesses and running educational institutes. Given this data, it would be unconstitutional to characterise Marathas as backward simply on the basis of their caste. Further, state governments should respect the 50 percent cap set by the Supreme Court and not increase the quota to appease voters. In the present case, reservation for Marathas over and above reservation for OBCs is not warranted under the “extraordinary circumstances” criteria envisaged by the Mandal case. It is only a matter of time when any reservation policy by the Maharashtra government which flouts the 50 percent ceiling will be challenged before the Supreme Court.

The author holds a Master of Law degree from University of Cambridge and is currently a researcher at National Law University, Delhi. Views expressed are personal.

Updated Date: Nov 17, 2018 17:52 PM

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