Reservations for Marathas: Devendra Fadnavis is fooling nobody when he mouths platitudes of social justice

With the Bombay High Court upholding reservations for Marathas, the madness over caste reservations in India has just got madder.

When it comes to reservations, I like to think of two Lakshmana rekhas that should never be crossed. One is a legal one: the Supreme Court’s 50 percent ceiling on total reservations. The second — 70 percent — is a psychological one, mentioned randomly by Ambedkar 70 years ago. The Father of the Constitution spoke of it not as a rule but to warn us against the ridiculousness of stretching reservations too far.

Even before reservations were extended to Marathas last year, Maharashtra’s total quotas (for SC/STs, and Other Backward Classes or OBCs) stood at 52 percent, a wee bit beyond the Supreme Court limit. This went up to 62 percent, after Prime Minister Narendra Modi’s 10 percent supposed bonanza for Economically Weaker Sections (EWS), an election gimmick targeting upper castes, announced three months before the recent Lok Sabha poll. With the high court approving the Maratha reservations of 12 percent in seats and 13 in jobs, the state’s total goes up to 74-75 percent, beyond Ambedkar’s psychological barrier.

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Unless the Supreme Court strikes down the verdict — petitioners have promised to go for an appeal — Maharashtra will be in the exalted company of Tamil Nadu in crossing both the Lakshmana rekhas with legal and political genius. Tamil Nadu accomplished the feat of 69 percent reservations through the Tenth Schedule of the Constitution, and Modi’s EWS farce jacked it up to 79 percent.

File image of Devendra Fadnavis. PTI

Maharashtra has achieved the distinction with the wily ploy of turning the politically influential Marathas into a “Socially and Economically Backward Class” (SEBC) and enacting a legislation to make it legal. This could trigger demands from sundry castes from other states to use the same subterfuge.

There are other states that crossed the Supreme Court barrier as you can see here and here, and some may even breach the 70 percent level, if they win cases pending against their brazen moves. But Maharashtra’s ingenuity is one of its kind.

Ambedkar’s fear comes true

This is what Ambedkar said at a meeting of the Drafting Committee of the Constitution:

“Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 percent...could anybody say that the reservation of 30 percent as open to general competition would be satisfactory (from the point of view of equal opportunities)? It cannot be, in my judgement. Therefore, the seats to be reserved...must be confined to a minority of seats. It is then only that the first principle (equal opportunities) could find its place in the Constitution...”

The Supreme Court first spoke of the ceiling of 50 percent “or less” in the Balaji case in 1962 relating to engineering and medical seats in what was then the Mysore state. The court upheld this limit even for jobs in the 1963 Devadasan case. It was on the basis of this that the Mandal Commission restricted reservations for OBCs in its 1980 report to 27 percent, so that, along with quotas for Scheduled Castes/Tribes, the total fell short of 50 percent. The apex court’s judgment in the 1992 Indra Sawhney case backed the 50 percent ceiling, saying it could only be stretched in “extraordinary” situations.

The 1992 verdict said: “While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main stream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”

And it’s this “special case” that Maharashtra’s BJP-Shiv Sena government believes it has made out through an 11-member Backward Classes Commission headed by Justice NG Gaikwad (retired), which it appointed in June 2018 and which submitted its report in November 2018. Gaikwad recommended 13 and 12 percent reservations for the community in jobs and education respectively. Then followed at lightning speed the Socially and Educationally Backward Classes (SEBC) Act, 2018 that the state Assembly passed, granting Marathas 16 percent reservation. When this law was challenged, the high court validated it, though restricting the quota to 12-13 percent, as recommended by Gaikwad.

Gaikwad’s report concluded that the community, which it claimed accounted for 30 percent of Maharashtra’s population, was under-represented in government jobs. Among other things, it also spoke of suicides by Maratha farmers and even their daughters. Happy with all this data, the high court said it was “satisfied” that an “extraordinary situation and exceptional circumstances” existed, warranting the crossing of the 50 percent limit.

The two-judge bench used its collective judicial wisdom on the basis of data available to it. But what was more striking was the eagerness of the state government to pamper Marathas with an obvious eye on the recent Lok Sabha election and the upcoming Assembly poll.

The court has acknowledged Gaikwad’s observation that Marathas are politically well-represented. This is not to suggest that the poor among them need no uplift. But whether they must have reservations to tide over agrarian distress, which triggered the latest unrest among them, is the question that Fadnavis has not answered with any degree of conviction.

If the BJP is mollycoddling Marathas to pad up its vote bank, it’s a dubious move that makes the party no different from the Congress whose notoriety for using reservations as an electoral tool is too well-known. And if the BJP is indeed using reservations as a poverty alleviation measure, it amounts to an economic illiteracy that’s equally appalling.

The last hasn’t been heard of this since the issue is set to go before the Supreme Court. In the meanwhile, however, the powerful Marathas will have the political cake — and eat the economic one too.

Author tweets @sprasadindia