Bombay HC upheld Maratha Reservation

Context:

• The Bombay High Court upheld reservation for Marathas in the State but quashed the 16% quota by calling it “not justifiable”.
• As per the HC’s observation, the reservation should not exceed 12% for education and 13% for jobs as recommended by the Maharashtra State Backward Class Commission (MSBCC).

Background:

The Maratha community, which comprises over 30 per cent of the state's population, has been seeking reservation in government jobs and education for a long time as fragmentation of land and frequent drought makes their condition critical most of farmers committed suicide belongs to Maratha caste.

• Based on the State Backward Class Commission's report, the government declared Maratha community as "socially and educationally backward class of citizens" and proposed 16 per cent quota for them in jobs and education which was passed by Maharashtra Legislature in November 2018.
• With the passage of the bill, the reservation quantum in the state rose to 68 per cent.
• In November 2018, the M G Gaikwad Commission in its recommendation declared the Maratha community as socially and educationally backward class of citizens (SEBC) and stated that the commuunity has inadequate representation in the services under the State.

Reservation in India

India is unique in the world in that reservation policies address historically disadvantaged groups, defined primarily by a caste system (most other countries base it on ethnicity, religion, language, gender or sexual preference).

• One major category of policies used in removing restrictions on freedoms is affirmative action or positive discrimination. Part XVI of the Indian Constitution deals with reservation for scheduled castes (SC) and scheduled tribes (ST) in federal and state legislatures, as well as with the constitutional authority of the president to establish commissions to examine and recommend remedies for the welfare of SC and ST groups.
• The initial reservations were only for SC and ST under Article 15(4) and Article 16(4) of the Indian Constitution for a period of 10 years (1951-1961); however, it is getting extended ever since.
• After the implementation of Mandal Commission report in 1990, the scope of the reservation was widened to include Other Backward Communities (OBCs) in 1991.
• In 2019, 124^th Constitutional Amendment seeks to provide reservation to Economically Weaker Sections also. Thus, economic criteria have also been included for reservation, in addition to the socially and educationally backward criteria which already existed.
• The benefits of the reservation were successively enjoyed only by a few communities (or families), excluding the truly deserving ones. Even 70 years after independence, the demand for reservation has only increased.
• The case of Tamil Nadu is instructive. It (including the erstwhile Madras Presidency) began affirmative action programmes over a century ago on the back of the Madras census report of 1871. It enacted an employment law that was primarily based on caste in 1927. By 1980, through successive governments, reservations for higher education and employment stood at nearly 70%.
• In Indra Sawhney vs Union of India, 1992, the Supreme Court of India capped caste-based reservation, ruling that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”.
• To counter Supreme Court-mandated maximum of 50% reservation, Tamil Nadu set a precedent by including it under the 9th Schedule of the Constitution (subject to very limited judicial review).

Observations of Bombay High Court

• Report of the Gaikwad Commission has set out the ‘exceptional circumstances and extra-ordinary situations’ justifying crossing of the limit of 50% reservation as set out in the Indra Sawhney case (Supreme Court).
• The 50% limit of reservation can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, inadequacy of representation and without affecting the efficiency in administration.
• The classification of the Maratha class into “Socially and Educationally Backward Class” was justified.
• The classification “complies with the twin test of reasonable classification permissible under Article 14 (equality before the law) of the Constitution of India, namely, intelligible differentia and rational nexus to the object sought to be achieved.
• However, the quantum of reservation set out by the Maharashtra State Reservation for seats for admission in educational institutions in the State and for appointments in the public services and posts under the State for SEBC as 16% is not justifiable and we quash and set aside the quantum of reservation under the said provisions over and above 12% and 13% respectively as recommended by the Commission.
• The State possesses the legislative competence to enact the Maharashtra State Reservation for Seats for Admission in Educational Institutions in the State and for appointments in the public services and posts under the State (for Socially and Educationally Backward Classes) SEBC Act, 2018, and the State’s legislative competence is not in any way affected by the Constitution.

Benefits of Reservation

• The biggest advantage of reservation system is that it has helped in promoting backward class people and also, further the cause of insuring due representation to all sections of Indian Society.
• Meritocracy is important but would be meaningless without equality. Reservation system has been successful in providing social justice to the most marginalized and underprivileged which is their human right.
• Reservation has provided a level playing field and also helping in reduction in the gap between the rich class and the backward poor class people.

Concerns related to Reservation System

• The number benefiting from reservation varies from state to state, but has reached extreme proportions in a state like Tamil Nadu, where 69% of government jobs and educational positions are reserved for a range of deprived and disadvantaged castes .
• The extension of the reservation system to OBCs has triggered further reaction; those not defined as OBC want in. Due to reservation system politicians get chance to polarize people on caste lines and use them as a tool for winning elections which further complex the issue as many well-off castes come out with demand of reservation.
• The benefits of reservation policy have largely been appropriated by the dominant class within the backward castes, thereby the most marginalised within the  backward castes have remained marginalised.
• The previously advantaged castes, begun to feel severely disadvantaged and demanded for inclusion of economically disadvantaged group in the reservation system which have been fulfilled by 124^th Constitutional Amendment. This gives way to pressure politics.
• Now there is demand for enforcing reservation system in Private sector which can have adverse longer-term consequences for economic growth.
• The challenge for India is that while many sections of the society remain disadvantaged (STs, for one), political action has shifted to relative discrimination within reserved groups. As the reservation pie grows larger, in effect, it becomes a method of exclusion rather than inclusion.
• Reservations seek to remedy unequal starting positions, but once introduced, during promotions they serve inverse purposed as they treat equals unequally. The argument for promotions, and reservations based on caste/community, and not on merit, is clearly has weak ground.
• Reservations are the biggest enemy of meritocracy and reservation is opposed to the promotion of merit based education system, which is the foundation of many progressive countries. Reservation rewards people on the basis of their caste and merit which should the actual criteria takes a back seat.

Conclusion

• While caste may be a prominent factor for "easy determination of backwardness", the Supreme Court discouraged "the identification of a group as backward solely on the basis of caste" and called for "new practices, methods and yardsticks" to be evolved.
• If reservation had been based not on caste but on income, i.e. for all BPL families, practically no deserving Scheduled Caste or Scheduled Tribe would have been excluded, but the beneficiaries would have changed every generation.
• Then, the bitterness of caste divisions would not have been politically perpetuated as they are now. So, it can be concluded that benefits of reservation should be given to only the most distressed and any other inclusions would be a serious abdication of the constitutional duty of the State.
• A critical assessment of its affirmative action programme like reservation is instantly required and simplification, legislative sunsets and periodic reviews should be important principles in the redesign.