Reservation for Marathas has gone through many ups and downs before the apex court said it was unconstitutional. It said there were no extraordinary circumstances to grant reservation to them over and above the 50 percent ceiling prescribed in the Indra Sawhney case. This could lead to cancellation of Kerala’s EWS reservation too. In October 2020, the Kerala government reserved 10 percent of government appointments for EWS who are not eligible for any kind of reservation. Has a Pandora’s Box been opened, asks REJIMON KUTTAPPAN reporting from Thiruvananthapuram.
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A PROVISION made in 2020 to reserve government jobs in Kerala for the Economically Weaker Section (EWS) may have to be revisited by the state government soon as the Supreme Court has quashed a similar move to offer reservation in Maharashtra recently.
Confirming the dilemma, Kerala Law Minister AK Balan said that the Supreme Court verdict may have an impact in Kerala. “A Constitution amendment is required, now. Additionally, the president’s nod is needed,” he said.
On May 5, 2021, the Supreme Court declared the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018, unconstitutional. A five-judge constitution bench headed by Justice Ashok Bhushan held that there were no extraordinary circumstances to give reservation to the Maratha community beyond the ceiling prescribed in the Indra Sawhney vs Union of India, popularly known as the Mandal case.
History of Maratha Quota
The Marathas are a Hindu community that mainly resides in Maharashtra. After the enforcement of the Constitution, the president of India appointed the Kaka Kalelkar Commission, the first National Commission for Backward Classes, to investigate the conditions of socially and educationally backward classes.
The Commission submitted its report in 1955 where it observed: “In Maharashtra, besides the Brahmin, it is the Maratha who claimed to be the ruling community in the villages, and the Prabhu, that dominated all other communities.” In other words, it didn’t find the Marathas as a backward class community in then Bombay.
Interestingly, in 1961, the home ministry declined to act on the Kaka Kalelkar Commission report and informed all states that they had the discretion to choose their criteria in defining backward classes and it would be open for them to draw their list of other backward classes (OBCs).
BD Deshmukh Committee
Acting on the directives of the government then, the Maharashtra government appointed the BD Deshmukh Committee for defining OBCs and to take steps for their developments. In 1964, the Deshmukh Committee submitted its report on OBCs to the state government saying that Marathas don’t belong to the backward class.
Three years later, Maharashtra issued a unified list of OBCs consisting of 180 castes for the entire state, which did not include the Marathas. However, in the list, at serial No 87, Kunbis were shown as belonging to OBCs. Kunbis are non-elite farmers in Maharashtra and surrounding states who are similar to the Maratha community. However, both communities are at loggerheads, most often.
Later on, in 1979, the president appointed the second National Commission Backward Classes (NCBC) within Article 340 of the Constitution, popularly known as the Mandal Commission. The second NCBC found that in Maharashtra, OBCs comprise 43.70 percent of the total population of the state.
The report also found that the percentage of non-Hindu backward classes was 8.40 percent and thus, the total percentage of the backward class of non-Hindus, including non-Hindu castes, were estimated at approx 52. The second NCBC also included Marathas in the upper Hindu caste category.
However, a request was received by the NCBC for the inclusion of “Maratha” in the Central List of Backward Classes for Maharashtra along with Kunbis. The NCBC conducted a public hearing in Mumbai and submitted a report in 1980 stating that Marathas are not a socially and educationally backward class community, but a socially advanced and prestigious community.
In 2008 too, the Maharashtra State OBC Commission submitted a report that Marathas cannot be included in the OBC list because it was a forward caste. Despite the existence of this commission, the Maharashtra government appointed a special committee to submit a report on the Maratha caste.
Success Finally
In 2014, the committee submitted its report to the state and recommended that special reservations under Articles 15(4) and 16(4) of the Constitution can be provided for Marathas. The same year, Maharashtra issued an ordinance providing 16 percent reservation for Marathas, but the ordinance was challenged.
A division bench of Bombay High Court stayed the ordinance. But the same year, the Maharashtra legislature passed the Act, and in 2015, it received the assent of the governor. In between this, the Constitution (102nd Amendment) Act, 2018, was brought into force, adding Article 338B, 342A, and 366(26C).
The 102nd amendment deals with the constitutional status of the NCBC. Article 338B deals with the structure, duties, and powers of the Commission, while 342-A speaks about the power of the president to notify a class as Socially and Educationally Backward (SEBC) and the power of Parliament to alter the central SEBC list.
In other words, Article 342 A empowers the president to specify socially and educationally backward classes in various states and Union Territories. He can do this in consultation with the governor of the concerned state. However, a law enacted by Parliament will be required if the list of backward classes is to be amended.
Interestingly, in November 2018, the State Backward Classes Commission submitted its report on the social, educational and economic status of Marathas and recommended reservation for them. Based on it, Maharashtra enacted the Act and published it in 2018, which was challenged again in court.
Petitions in Court
The petitions pleaded that providing reservation to the Marathas to the extent of 16 percent amounted to a breach of Articles 14, 16 and 21 of the Constitution and also bypassed the 50 percent ceiling of reservation. Referring to the judgment of the Supreme Court in Indra Sawhney’s case, it was pleaded that the reservation was not permissible beyond 50 percent.
Finally, on May 5, 2021, the Supreme Court struck down the Maratha community reservation.
The Court said that there were no extraordinary circumstances to grant reservation to the Maratha community over and above the 50 percent ceiling on the reservation as prescribed in the Indra Sawhney case. It added that the Act of 2018 violates the principles of equality and exceeding the 50 percent ceiling limit violated Articles 14 and 15 of the Constitution.
The court further said that neither the Gaikwad Commission report nor the judgment of the Bombay High Court has made out an extraordinary situation in the case of Marathas to exceed the ceiling of 50 percent. “Conclusions of the commission are unsustainable. There is no case of the extraordinary situation for exceeding the ceiling limit of 50 percent for grant of reservation to Marathas over and above the 50 percent,” the Court stressed.
324 A AND 102 AMENDMENT
Interestingly, the interpretation of Article 342A inserted by the 102nd Constitutional Amendment created a bit of confusion in the Maratha case. Article 342A calls for the identification of communities in states as socially and educationally backward classes by the president in consultation with the governor.
The question before the Court was whether the said Article deprived the states of the power to classify any community as SEBC.
Justices Ashok Bhushan and S Abdul Nazeer took the view that by Article 342A, the Parliament did not intend to take away the power of states to identify backward classes. They upheld the 102nd Constitutional Amendment which inserted Article 342A.
However, Justices Nageswara Rao, Ravindra Bhat and Hemant Gupta held that under Article 342A, the president alone is empowered to identify SEBC and notify in the list. States can only make suggestions. But they too upheld the 102nd Amendment.
KERALA AND EWS
Meanwhile, talking to The Leaflet, K Santhosh Kumar, a Dalit activist and writer, said that the verdict on the Maratha case would lead to Kerala’s EWS reservation cancellation. “The Maratha case verdict says that there was no an extraordinary situation in the case of Marathas to exceed the ceiling of 50 percent reservation. The court also said that the Maratha quota reservation violates the principles of equality mentioned in Articles 14 and 15 of the Constitution. So, we anticipate that the EWS in Kerala is invalid,” Santhosh said.
In October 2020, the Left-ruling Kerala government had amended the reservation rules in the state and subordinate services rules by reserving 10 percent of government appointments for EWS who are not eligible for any kind of reservation.
And in the same month, the Kerala Public Service Commission formally adopted the state government order introducing a 10% job reservation for candidates belonging to EWS. Santhosh said: “There was no detailed study conducted in Kerala to identify the EWS in the general category.
Without a study, the Kerala government decided that a certain section in the general category deserves reservation. This is against the core principles of reservation.” He added that reservation is meant to uplift those who are socially and educationally backward.
On January 9, 2019, Parliament enacted the Constitution (103rd) Act, 2019, enabling states to make reservations in higher education and matters of public employment based on economic criteria alone in the general category. The Act amended Articles 15 and 16 of the Constitution by inserting 15(6) and 16(6). It received presidential assent on January 12, 2019, and was published in the Gazette on the same day.
Special Provisions
The Amendment under Article 15(6) enables states to make special provisions for the advancement of any economically weaker section of citizens who don’t belong to the Scheduled Caste and Scheduled Tribes and including reservations in educational institutions. It states that such reservations can be made in any educational institution, including both aided and unaided private institutions, except minority educational institutions covered under Article 30(1). And Article 16(6) enables the state to make provisions for reservation in appointments.
According to the Act, a person belonging to any forward community can avail of EWS reservation, if (s)he has an annual household income below Rs 8 lakh, agriculture land below 5 acres, a residential house below 1,000 sq ft, a residential plot below 100 yards in a notified municipality and a residential plot below 200 yards in a non-notified municipality area.
And based on a report, Kerala decided that a person belonging to any forward community can avail of EWS reservation if the annual family income is below Rs 4 lakh; if (s)he does not have more than 2.5 acres of land in panchayats, less than 75 cents in municipalities and less than 50 cents in corporation limits. (One cent of land is equal to 435.6 square feet.)
Additionally, people owning house plots below 20 cents in municipal corporation limits and less than 15 cents in city corporation limits will be eligible.
“Despite the case being still heard in the Supreme Court, challenging the Constitutional validity of the 103rd Amendment, the Kerala government moved in haste to award the reservation in 2020,” Santhosh said.
“What was the extraordinary situation in Kerala to give reservation for EWS? We don’t see one. So, we feel that this reservation will be nullified. The minister’s media statements also signal that,” Santhosh added.
Meanwhile, Bineesh BS, a legal expert, told The Leaflet that, at this juncture, if some join the case in Supreme Court, EWS in Kerala will be nullified. “In this Maratha case too, the Supreme Court has quoted Indra Sawhney case. What does the Indra Sawhney case say? It states that reservation cannot be based solely on economic criteria. So what we can do now is that somebody should join the case challenging the 103 Act in the Supreme Court and contest the EWS citing the Maratha verdict. The EWS in Kerala will be nullified,” he added.
It looks like a Pandora’s Box has been opened.
(Rejimon Kuttappan is a migrant rights researcher, multi-media journalist and author based in Thiruvananthapuram. The views expressed are personal.)
