Time to review reservation policy

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The decision of the Supreme Court that puts 50% cap on reservations has thrown a spanner in their works but the Marathas are regardless bracing up to press for their demand again. While the legal battle will continue, Prof Avinash Kolhe argues that a time has indeed come to take a fresh look at reservation policy and the criterions it is based on so far.

The politically dominant community in Maharashtra, (32% of the total population of the state) Marathas are hell-bent on getting reservations. Though the Supreme Court has rejected their demand on 5th May, the community has buckled up and is getting ready to press its demand. This time, however, they are not up against the state government as the state governments of all political hues have been sympathetic to the demand of the community. The real hurdle is the decision of the Supreme Court of 1993 in the famous Indra Sawney case that has set a cap of 50% on reservations. Today reservation break-up in Maharashtra is like this: the SCs 13%, the STs 7%, the OBCs 19%, Special Backward category 2%, Vimukta Jati 3%, Nomadic Tribes B 2.5%, Nomadic Tribes C Dhangar 3.5% and Nomadic Tribe D Vanjari 2%, taking to total reservation to 52%. The act of 2018 had given Marathas 12% reservation in education and 13% reservation in jobs, pushing the overall reservation ceiling to 64% and 65%.

The issue has become so emotionally charged that the heirs of Chhatrapati Shivaji Maharaj too have joined the agitation. Honorable Sambhajiraje of Kolhapur seat and Honorable Udayanraje of Satara seat are now leading the agitations. On Wednesday, 16 June 2021, the Maratha community began its next phase of statewide silent agitation. The silent march was held at Shahu Samadhi Sthal, the resting place of Rajarshi Shahu Maharaj, a reformer king of Kolhapur and a descendent of Chattrapati Shivaji Maharaj. The Maratha royalty joining the agitation is quite unusual. All these years, they kept away from the humdrum of party politics, barring few occasions. Now the royalty is in the forefront. Vanchit Bahujan Aaghadi (VBA) chief Prakash Ambedkar, grandson of Dr. B R Ambedkar, too participated in the protest.

It must be noted that the OBC leadership too is upset with some changes likely to be brought in the Supreme Court verdict delivered on 4 March 2021. The state’s review petition was quashed by the Apex court on 28 May 2021. The SC verdict has virtually cancelled the political reservation for the OBC. The Akhil Bharatiya Mahatma Phule Samata Parishad (ABMPSP) led by senior NCP leader Chhagan Bhujbal has declared to start agitations to support their demands of political reservations for the OBC for local bodies across Maharashtra.

Though the OBC reservation is not directly connected to Maratha reservation demand, it shows how the entire edifice of reservation in Maharashtra is facing formidable challenges.

Before we get into the nitty-gritty of the issue, a quick recap on the recent past of this problem is called for. The BJP government led by Devendra Fadnavis had appointed Justice M G Gaikwad commission to report on reservations for the Social and Economically Backwards Classes (SEBCs). The commission was set up in June 2017. The Gaikwad commission submitted the report in 2018, basis which the Maharashtra assembly had passed a bill to that effect in November 2018. As was expected this law was challenged in the Bombay High Court which upheld the SEBC reservation. It then was challenged in the Supreme Court which granted a stay on 9 September 2020 and referred the issue to a larger bench. On 5 May 2021 the apex court struck down this act as ‘unconstitutional’.

The SC ruling has expectedly sparked a debate on the future of reservations. Former CM Prithviraj Chavan argues that the Indra Sawhney verdict is not sacrosanct since the Union government itself has raised the quota limit to 60 per cent by adding 10 per cent reservation to economically backward classes. The SC ruling has also sparked a debate on the future of reservations. Former CM Prithviraj Chavan argues that the Indra Sawhney verdict is not sacrosanct since the Union government itself has raised the quota limit to 60 per cent by adding 10 per cent reservation to economically backward classes.Seven states have introduced laws to expand the reservation limit above 50 per cent, but most are being challenged in the courts; only Tamil Nadu (69 per cent) and Andhra Pradesh (66 per cent) have reservation above the SC ordered limit (their laws came into effect before the 102nd amendment was passed). Sensing the unrest among the Marathas, the Maharashtra government on 11th May 2021 constituted an eight-member committee headed by retired chief justice of Allahabad High Court Dileep Bhosale to analyse the SC verdict. The Bhosale committee has recommended a review petition, challenging the verdict in relation to the 50% cap on reservations, the viability of the report submitted by a state-level commission that pointed out the need for the Maratha quota and the SCs observation over the 102nd Constitutional amendment. The Bhosale committee has recommended challenging the SC verdict on 42 legal points with emphasis on two major ones. It has pointed out that while stating that there was no need to review the Indra Sawhney judgement of 1993, the Apex court did not say anything about the quota given to the Economically Weaker Sections (EWSs). It is clear that the EWS quote case is pending in the Apex court and striking down Maharashtra state law before any ruling on it, was bad in law. The 103rd Constitution amendment made to accord the 10% quota to EWS beyond the 50% cap is yet to be decided by the SC. The Bhosale committee has recommended the setting up of a new backward class commission to decide the backwardness of Marathas, in case the review petition was dismissed by the SC.

While the legal battle will continue, time has indeed come to take a fresh look at reservation policy and the criterions it is based on so far. Till today it was on social and educational backwardness and not on economic backwardness. Now the need has arisen due to the reality that there is growing socio-economic differentiation within the dominant castes, something the leaders of these castes do not recognize. In the last 70 years, there have taken place vast changes in the educational and economic profiles of dominant castes. Let us focus on Marathas of Maharashtra. Comparison based on statistics is called for: the percentage of graduates among Dalits in 2004-05 was 1.9 per cent. It has more than doubled to 5.1 per cent in 2011-12. The corresponding figure for OBCs was 3.5 per cent and has doubled to 7.6 per cent, while for Marathas it was 4.6 per cent and increased to 8 per cent.

The Apex court should have taken cognizance of this new reality. Instead, it preferred to stay with the Indra Sawhney judgement of 1993. Time has come to review the entire edifice of reservation in our country.


Prof. Avinash Kolhe

Prof. Avinash Kolhe retired as Associate Professor in Political Science from D.G. Ruparel College, Mumbai.

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