Reservations: Fresh blow to affirmative action

The Supreme Court’s verdict in the Maratha reservation case is in keeping with its restrictive approach towards affirmative action.

In the judgment delivered last week, the court struck down the 2018 Maharashtra law providing reservation for the Marathas in educational institutions and government service.

The Marathas, who constitute about 30 per cent of the state’s population, are mainly farmers. Their numbers give them political clout. But they are socially and educationally backward on account of centuries of discrimination under the rigid caste system.

The 16 per cent Maratha quota raised reservations in the state to 68 per cent. The law thus contravened the rule the Supreme Court had laid down in its 1992 judgment in what is known as the Indira Sawhney case, setting a 50 per cent ceiling on reservations.

Opponents of reservation challenged the law in the Bombay High Court. It upheld the law but trimmed the quota slightly.

The High Court said the Indra Sawhney judgment did not take away states’ power to exceed the 50 per cent limit in a deserving case.

The petitioners then went in appeal to the Supreme Court. It struck down the law saying neither the Gaikwad Commission report on which the Maharashtra government had relied nor the Bombay High Court had made out a case for breaching the 50 per cent cap.

The Indra Sawhney judgment was a good one and exceeding the 50 per cent limit it had set was violative of the equality provisions of Articles 14 and 15 of the Constitution, it said. The Constitution Bench which heard the appeal also upheld the validity of Article 342A of the Constitution brought in by the Modi government.

It empowers the President to identify socially and educationally backward communities in states in consultation with the Governor of the state concerned.

This Article, in effect, shifted the right to determine the social and educational status of a community from the state to the Centre.

The Supreme Court did not express any opinion on the merit of the state government’s classification of Marathas as socially and educationally backward. However, this may now require the Centre’s endorsement. Even if the Centre accepts the state’s suggestion in this regard, the Maratha community can be allotted a quota only by cutting into allotments already made to various other groups. This is not an easy proposition.

When India gained freedom in 1947 the society was grossly unequal as a result of the hierarchical caste system. According to the best historical and scientific evidence now available the system had originated about 2,100 years ago in the north and gained ground throughout the subcontinent over a 1,000-year period.  The British rulers, who relied largely upon caste supremacists to run the administration, did not disturb the social order.

Responding to demands from various backward groups, the British ruled Madras Presidency and a few princely states introduced reservation in educational institutions and government service about 90 years ago.  The Constitution which came into force in 1950 declared all citizens are equal. It granted reservation to Dalits and Adivasis but not to other backward classes (OBCs).

Within months a Brahmin petitioner challenged the reservation for OBCs in Madras in the High Court.  Interpreting the equality provision mechanically, overlooking the widespread inequality in the society, the High Court and the Supreme Court ruled the pre-existing reservation violative of the Constitution.

Thereupon the Centre, through an amendment, added a proviso to the equality clause of the Constitution making it clear that nothing in it precludes the state from making special provisions for advancement of socially and economically backward classes of people.

The government saw the proviso only as a means to protect pre-existing affirmative action programmes. In 1990, Prime Minister VP Singh decided to implement the 1980 Mandal Commission recommendations to grant reservation to OBCs in government services and in universities throughout the country.  Various OBC groups in the country have now been enjoying reservation for 30 to 90 years. But they are yet to catch up with the advanced sections. This is, at least in part, due to the restrictive approach of the limbs of state.

Some court verdicts, instead of creating a level playing field, have set handicaps on the backward classes. The 50 per cent cap is an example.

Dalits and Adivasis together have a 22.5 per cent quota which roughly corresponds to their population. The court-set 50 per cent limit restricts the quota of OBCs, who constitute a majority of the population, to 27.5 per cent.

The advanced sections, who form less than 25 per cent of the population get a 50 per cent quota.

The court has also restricted reservation to one generation of an OBC family. This means the second generation of that OBC family has to compete with members of families which had a privileged position in society for many centuries.