In the tapestry of India’s social fabric, the policies of reservation have both come as a ray of hope for the minority and oppressed groups, as well as a source of immense, and oftentimes, fatal, dissent and debates from the larger public. As the constitutional validity of the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act[1], commonly referred to as the ‘Maratha reservation judgment’ and its consequences upon the reservation ceiling decided in the Indira Sawhney Judgment[2] were deliberated upon by the Hon’ble Constitutional Bench, the aftermath of the verdict sent ripples across the Maratha community in the state. This article intends to explore the implications that the reservation ceiling has, specifically focusing on the Maratha community, the delicate balance between fairness and justice and its overarching impact on affirmative action by the Judiciary in India.
Reservation Policy and Affirmative Action : A Critical Analysis
This article takes a deep and critical dive into the reservation ceiling established in the Indira Sawhney judgment and how it later impacted, and continues to impact, further judgments relating to reservation policies, the most notable of them being Jaishri Laxmanrao Patil v Chief Minister, Maharashtra, more commonly known as the Maratha Reservation Judgment. The Hon’ble Supreme Court’s decision in this matter serves as a focal point to understand the intersectionality between the myriad constitutional dimensions and the implications of setting limits on affirmative action policies. By examining the legal, historical and socio-political implications, this article aims to provide a nuanced perspective on how established ceilings in reservation policies impact marginalized communities.
Let us take a dive into the historical aspect of the idea of reservation and dissect how the reservation of the Maratha community in Maharashtra changed from being an opinion of people into a contentious issue among the larger public. Reservation, when understood in its most basic sense, is the idea of facilitating easier access and reach to those groups of people in India who have been historically oppressed and have been made to suffer injustices and atrocities based on their caste identities. In the year 1882, Jyotirao Phule along with Sir William Hunter, a Scottish historian, originally conceived the idea of caste – based reservation policies for the upliftment of the lower rungs of the Indian society. Subsequently, the Hunter Commission was established the same year, presided over by Sir Hunter himself, to look after and provide education to the backward districts, along with offering them vertical reservation in jobs with the Government.
Further down the line, on the 16th day of August, 1932, former British Prime Minister James Ramsay Macdonald implemented the policy of ‘Communal Awards’, wherein separate electorates for the Muslim, Sikh and European communities residing in India were to be made. This policy increased the total number of areas that allowed Anglo – Indians and Indian – Christians a distinct electorate, as provided for under the Government of India Act of 1919. The Poona Pact also becomes a significant event while tracing the history of reservation as rocky negotiations between Mahatma Gandhi and Babasaheb Ambedkar lead to a single Hindu electorate, while allowing for certain reservations in that particular electorate of the province.
After India achieved its independence, the policy of reservation was continued. However, it was used very specifically for the Scheduled Tribes and the Scheduled Castes, as laid out in the Constitution of India. Subsequently, the Kalelkar Commission was constituted to in the year 1953 to look into increased demands for reservation of the Socially and Educationally Backward communities of India, under article 340 of the Constitution of India. The findings of the Commission, however were not submitted in time and a new commission, called the Mandal Commission was constituted in the year 1979 to investigate and submit its findings on the status of the Socially and Educationally Backward communities of India, along with making provisions for the upliftment of these communities by increasing the percentage of reservation and taking steps to further help them.
This was finally followed by the Sachar Committee, constituted in the year 2005. This committee had a new objective. Their objective was to study the social, financial and educational standing of the Muslim community and people residing in India. This Committee was the first of its kind, insofar as it had a defined community to make affirmative and welfare policies for, which can lead to their upliftment and development as a whole.
On the 9th day of July, 2014, the Maharashtra Legislative Assembly passed a law giving 16% reservation quota to the Maratha community in public works and education. Consequently, the Hon’ble High Court of Maharashtra issued an order on November 14, 2014 prohibiting the application and implementation of this Law. Following this order, on the 18th day of December, 2014, the Hon’ble Supreme Court rejected an attempt to provisionally enforce the Hon’ble High Court’s decision. The Maharashtra government subsequently passed the Social and Re-Education Act, 2014 (hereinafter referred to as ‘the Act’). The Maratha community in the larger Maharashtrian society was previously seen as belonging to the educationally and culturally oppressed classes, which were subject to this acknowledged 16% vertical reservation under the reservation quota.
Consequently, the Maharashtra State Backward Class Commission (hereinafter referred to as ‘MSBC’) was established by a notification released by the Maharashtra government on January 4, 2017. Under Justice Gaikwad, the Commission introduced several policies for the Maratha community, allowing for a 13% reservation in both, educational institutions and government jobs. Further, on the 29th day of November, 2018, the Maharashtra Legislative Assembly approved the Socially and Educationally Backward Classes Act (hereinafter referred to as ‘SEBC’), 2018 after receiving clearance from the MSBC. Because the vertical reservation exceeded the recommended reservation ceiling established under the Indira Sawhney judgment[3], In 2018, Hon’ble High Court of Maharashtra considered the above matter on the grounds of constitutionality, and in doing so, deliberated and ordered that the 16% vertical reservation quota under the law be reduced to 12% for government jobs and 13% for educational institutions. Under Jaishri Laxmanrao Patil v. State of Maharashtra[4], the 16% reservation was capped at 12% for educational institutions and 13% for the government jobs for the Maratha community. Currently, the appeal is being considered by the Supreme Court under a larger bench.
Articles 338B and 342A of the Constitution of India were introduced on the 15th day of August, 2018, under the Constitution (102nd Amendment) Act of 2018. This Amendment also provided for the formation of the National Commission for Backward Classes (hereinafter referred to as ‘NCBC’). The President of India has the power, in this regard, to classify the socially and educationally backward cultures under Article 342A of the Constitution of India.
The Hon’ble Supreme Court in the Indira Sawhney judgement observed that the minority groups and communities entitled under the Constitution of India for the vertical reservation quota will remain entitled to their share under the 50% vertical reservation quota ceiling.
Numerous reports are being reanalysed and newer reports being made, data being collected and the history of the Maratha community under the British Raj being looked into by the Maharashtra state, which will take into account their economic state and standing in the society through reports of everyday lives of the people. However, the states can only propose inclusion or exclusion of the communities, and other changes can only be requested through Parliament to be brought to fruition or implemented through existing or new welfare policies.
However, this decision of the Bombay High Court on the Maratha community’s reservation does not take into account similar judgements made by the Hon’ble Supreme Court and other High Courts of India, in the four Indira Soni cases as well as the cases of restriction on the vertical reservation quota on Gujjar[5] and Jat communities[6]. According to the Mandal Commission report, when looking at the population, it is seen that 13% and 11% of the population belong to SC – ST communities and 52% belong to OBC, respectively. There too, a large population of the total population of the State of Maharashtra has been observed to be under its umbrella.
It can also be observed that the jurisprudence and societal understanding while delivering and deliberating on the Indira Sawhney judgment does not reflect the changing views on the legality and effectiveness of those judgments and orders in today’s time and need to be revisited. Over time the parameters defining backwardness have changed and the ideas about social differences underwent a much needed revision. But the situation in the Maratha community’s fight for vertical reservation shows the need for a balanced strategy as well as affirmative action, along with welfare policies
The Hon’ble Courts’ decision opens the platform for discussion and deliberation on whether the principle of anti-discrimination programs and policies should only be used in specific cases and not as a rule or norm followed every time. This decision also raises concerns over the governance of the Maratha community specifically, and seeks clarification on the need for revision and inclusion of legal guidelines to make them more affirmative action – oriented.
The Way Forward
Taking into account the arguments for and against the Maratha Community, and critically analysing the vertical reservation ceiling having a cap of 50% as established in the Indira Sawhney judgment, the conclusion that can be drawn is that the Hon’ble Supreme Court will have to re – evaluate its policy regarding the vertical reservation ceiling. The 50% vertical reservation cap will do more harm than good, as is being observed frequently. Even if it’s not for the Maratha community specifically, an amendment in the existing laws and policies is the need of the hour, so that affirmative action, which was what was the original intention and expected outcome for introducing the idea of reservation is achieved. The Maratha Reservation Judgment documents the ongoing difficulties in striking a balance between anti-discrimination laws and constitutional norms along with adopting and implementing affirmative action in existing welfare policies.
As for the arguments against revisiting the vertical reservation cap, authorities should become more active in trying to distinguish between cases showing a fraudulent certification of ‘non – creamy layer’ as opposed to a real certification of the same, which will be a step in the direction towards helping the minority groups and communities get the benefits tailored for them by the State.
[1] Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018.
[2] Indra Sawhney and Others v. Union of India and Others, AIR 1993 SC 477, (1992) 3 SCC 217
[3] Indra Sawhney and Others v. Union of India and Others, AIR 1993 SC 477, (1992) 3 SCC 217
[4] Reference Civil Appeal No. 3123 of 23030
[5] Captain V. Gurwinder Singh and Ors. (2018 (1) SLR 385)
[6] Ram Singh & Ors. V. Union of India (2015 SC)
Author: Kinjal Alok
Juris Centre 