Maratha Reservation and Related Cases

IN NEWS:

• The Supreme Court struck down the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 which extends reservation to the Maratha community in public education and employment.

BACKGROUND:

Marathas:

• Marathas are essentially agrarian community — historically identified as warriors — which is politically dominating in Maharashtra.
• Despite the political dominance over the years, subsequent agrarian crisis has led to wide gap among them leading to a decline in financial stability among lower middle class and middle class. It led to the demand for reservation in jobs and education.

Demand for Reservation:

• The demand for reservation has been pending since 1980s. But it gained attention following various ‘silent marches’ across the State demanding reservation throughout 2017 and 2018.
• Sensing the growing aggression, the Maharashtra government set up a 11-member commission headed by Retired Justice N G Gaikwad in 2017. The commission submitted a report stating Marathas should be given reservation under Socially and Educationally Backward Class (SEBC).
• In November 2018, the Maratha community was given the reservation under the Maharashtra State Socially and Educational Backward Act.

Judicial review:  

• The Act was challenged in the Bombay High Court. While the court upheld the Act, it reduced the 16% reservation to 12%.
• Later, the issue reached the Supreme Court. The court stayed its implementation and referred the case for larger bench.
• The bench quashed the reservation, citing the judgment in Indra Sawhney v. Union of India, 1992.
• The SC also upheld the 102nd Constitution amendment and viewed that only the President will have the power to identify backward classes in a state or Union Territory.

INDRA SAWHNEY V. UNION OF INDIA

• This case questioned the constitutional validity of the OBC reservations as suggested by the Mandal commission.
• The 9-judge bench of the Supreme Court ruled that:
  • Mandal Commission’s 27 percent quota for backward classes will stand.
  • The combined scheduled caste, scheduled tribe, and backward class beneficiaries should not exceed 50 percent of India’s population.
  • 10% reservation for economically backward classes is invalid, citing that economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16 of the Constitution.
  • Exclude Creamy layer of other backward classes from enjoying reservation facilities.
• Later, in M. Nagaraj v. Union of India, 2006, the court held that even if the State has a compelling reason to provide reservation, it should not breach the ceiling-limit of 50%.

102^nd CONSTITUTION AMENDMENT ACT, 2018:

• The 102nd Constitution Amendment Act, 2018 provided constitutional status to the National Commission for Backward Classes (NCBC).
• The Act inserted new Articles 338 B and 342 A:
  • Article 338B provides authority to NCBC to examine complaints and welfare measures regarding socially and educationally backward classes.
  • Article 342 A empowers President to specify socially and educationally backward classes in various states and union territories.

WHY THE DEMAND PERSISTS:

Despite decades of Independence, economic growth and social transformation, the clamour for reservations has only strengthened. Some of the major reasons for this are:

• “Mandal politics”: Today, reservations have become a major political tool. In order to appease vote bank communities, political parties continue to expand reservation- even to the extent that now dominant communities’ avail quotas.
• Failure of inclusive growth: India had limited success in achieving inclusive growth and distributive justice due to factors such as the failure of land reform, weak grassroot level democracy, obsolete school education and a precarious healthcare sector. Hence, a large section of people remain alienated and they view reservation as the only means of attaining the benefits of national development.
• Developmental deficit: Governments, instead of taking reformative efforts towards development, have come to use reservation as a poverty alleviation and employment measure. Covid crisis is expected to aggravate the situation.

• Lack of quality employment: Between 1990-91 and 2011-12, India’s public sector jobs decreased by 7% though the population increased by 30% to 1.2 billion. This, along with the absence of other formal sector employment, is forcing people to demand for more reservations in employment.
• Absence of data: No caste-based census has been conducted since 1931. Due to lack of empirical data on backwardness, whenever any caste group launches an agitation for quota or for itself to be considered ‘backward’, the government fails to counter their demand.

• Failure in implementation: Many cases exist where the reservations are not being implemented. For instance, in July, 2020, the central government admitted in the Madras High Court that OBCs were not given reservation in the all-India quota of medical seats in several courses.
• Intra community inequality: Within communities, some benefited more than others. For eg: A panel constituted by the government in 2017 had found that among OBCs, less than 1 % have cornered 50 % of the reservation benefits, while 20% of OBC communities did not get any quota benefit between 2014 and 2018. Hence, the sidelined communities demand for more reservations.
• Persistence of social evils: Some social evils continue to plague the socio-economic upliftment of communities. For eg: Gaikwad Commission had identified the prevalence of child marriage and dowry, which came in the way of education of girls, as a major reason for the social and educational backwardness among Maratha community.

WAY FORWARD:

• Generate reliable data: Without any data on Caste, it is difficult to formulate effective policies for the welfare of the excluded sections. Hence, the government must take measures to create a credible dataset and the Census 2021 is an ideal platform for this.
• Sub categorization: Sub categorization will ensure that the more backward among the communities have equitable access to the benefits of reservation. Several states have already sub-categorised OBCs. The Union government has constituted a Commission headed by Justice (Retd.) Smt. G. Rohini to examine the sub-categorisation of OBCs.
• Formalisation of jobs: There are no substitutes for the problem of worsening of job quality and informalisation of the existing workforce. Government has to encourage the informal sector to formalize, through tax holidays, incentivizing employers to register with the Employees' Provident Fund Organisation etc.

• Affordable higher education: A better option other than reservation would have been a provision of good-quality free higher education to those who are unable to access it and creating an enabling environment for better-quality jobs in private and public sector.

• Inclusive development: Government has to take substantial steps to bring about structural changes in areas such as agriculture, education, skill development and employment generation.
• Improve awareness: Several studies have pointed out that a large section of people, particularly among the poorest, lack awareness about the reservation policies. Hence, steps must be taken to make the people more aware of reservations and make reservations accessible to them.

PRACTICE QUESTION:

Q. Duty of State to protect against deprivation should not be confused with State’s obligation to treat everyone uniformly and equally without discrimination. In this regard, discuss the significance of Indra Sawhney case?