(Aishi Barat is a first year student at Jogesh Chandra Chaudhuri Law College, Calcutta University)
Featured Illustration – “The Procession of Calvary” by Pieter Bruegel
India is known to be the world’s largest democracy. In spite of this fact, it underwent vast multifarious controversies owing to the caste system, which, even today, is deeply entangled with our culture and structure. The reservation system was introduced by the government to improve the situation of the lower castes by providing them with government jobs and admitting them to higher educational institutions. However, the question arises whether the system has helped bridge the gap between the lower and upper caste, or has it led to further enhancement of differences between them?
Recently, the Supreme Court in Dr. Jaishri Laxmanrao Patil v. The Chief Minister & Anr has stayed the implementation of the Socially and Educationally Backward Classes (SEBC) act, 2018, enacted by the State of Maharashtra. This case concerning Maratha reservations has been referred to a constitutional bench. The issue of reservation of Marathas has been lingering for years. There were multiple protests for giving reservation to them under the OBC category. Nonetheless, a question that still hangs in the air is whether they actually require reservation for adequate representation in the society under the benchmarks provided in previous Supreme Court judgements.
Is the Maratha community backward?
According to the landmark judgement of Indra Sawhney v. Union of India, the Supreme Court had set out specific parameters that would categories a group as socially and educationally backward. A class or caste is deemed socially backward when their livelihood is mainly dependent upon manual labour. The involvement of females in work is not even 25% above the state average and they are reckoned as socially backward by others. Likewise, if the number of children in a specific class or caste between 5-15 years, never attended school or dropped out is 25% above the state average, they would be considered as educationally backward. Moreover, the Supreme Court had put forth another test for determining the socially and educationally backward classes, like stigmas of low-occupation, criminality, nomadism, beggary and untouchability besides inadequate representation in public services and educational institutions. Hence, Several commissions were set up in the recent past, both by the Centre (Mandal Commission in 1980) and state government (Khatri commission in 1995 and Bapat commission in 2008) for understanding the status of the Marathas. However, all the commissions rejected their plea for giving them the status of backward class. The fundamental cause for repudiating the request was that the Marathas have always been an influential and politically dominant class, with most of the state’s chief ministers belonging to this community. Moreover, they were historically considered as “warrior class” with large land-holdings. The Marathas even make up more than 31 percent of Maharashtra’s population as per the 2001 census. With such a large-scale population, it is blatantly implausible to declare a community as marginalized. Despite this there was a sizable vehement protest by the community in the state for not recognizing them as backward class. The protest per se shows that the Marathas could put their distress or sufferings in front of the public at large. At the same time, asking for a reservation seems immensely paradoxical.
Moreover, the data used by the Maharashtra State Backward Class Commission (MSBC) in its report was not at all quantifiable or scientific for the purposes of determining the backwardness of Marathas. A small sample size survey of 46629 families was done that amounted to even less than 0.2% of the state’s approximate 11.5 crore population. Out of which included 29813 Maratha families. Since 63.9% of the surveyed families belonged to the Maratha community, the end result was in the favour of the Marathas.
SEBC: An Act that is violative of the constitution
The Socially and Educationally Backward Classes Act, 2018 brought a plethora of controversies pertaining to its constitutional validity. The law is based on a report submitted by the MSBC under the chairmanship of Justice N.G. Gaikwad. The moot question in here is whether the state legislative assembly is authorized to declare a group as socially and educationally backward and in turn, make laws for them, or is it at the complete discretion of the President.
According to Article 12 of the Indian Constitution, the word “State” does include the legislature of each State that is under the control of the government of India. Hence, under Article 15(5) and 16(4), the Maharashtra Legislative Assembly can establish special provisions for the advancement of socially and educationally backward classes. This encompasses both educational institutions, including the private institutions and government posts, for those who have not been adequately represented in the society. On the contrary, Article 338B(9), 342A(1) and 342A(2), which were inserted in the constitution through the 102nd constitutional amendment act are being infringed with the ratification of the SEBC act. Under Article 338B(9), the state government has to consult the National Commission for Backward Classes (NCBC) on all significant policy matters pertaining to the socially and educationally backward classes, but in the current scenario, there was no discussion between the Maharashtra Legislative Assembly to the NCBC prior to implementing the law. Moreover, only the parliament has the power to alter the central list concerning the socially and educationally backward class under Article 342A(1) and the President under Article 342A(2) to proclaim a group as backward, not the legislative assembly. The interplay between these articles creates a considerable question of law before the Supreme court of India. Hence, as mandated by Article 145(3) of the Constitution the current matter has been referred to a constitutional bench.
Notwithstanding that the Apex Court reiterated in various judgements that a 50-percent limit on the reservation could not be breached, Maharashtra, after making a 16% reservation for Marathas, stands amongst the highest with an exorbitant seventy-five percentage reservation policy in India. Right from the judgement of the Supreme Court in M. R. Balaji And Others vs State of Mysore till the latest judgment concerning Jats in Rajasthan and Gujjars in Gujarat, the 50 percent ceiling continues to exist. A small window was provided in the judgment of Indra Sawhney when the cap of 50-percent could be transgressed, that is, an exceptional circumstance or extraordinary situation. The extraordinary circumstance proffered by the Maharashtra government in the Bombay High Court judgement (Dr. Jishri Laxmanrao Patil vs The Chief Minister of State) was that there was a sink in income as well as hopelessness of families to survive. Substantial backlog in services under the State, an increase in the number of suicides resulting from form indebtedness and Inability to raise the standard of living due to adverse conditions. Though none of the circumstances stated by the Maharashtra government fulfils the parameters set out by the Supreme Court as mentioned above, the Bombay High Court ratifies the reservation policy merely by reducing the quantum from 16% to 12% in educational institutions and 13% in state government jobs. However, when the Bombay High Court judgement was challenged before the Supreme Court (Dr. Jaishri Laxmanrao Patil v. The Chief Minister & Anr) it was of the prima facie opinion that the State of Maharashtra did not show any extraordinary situation for providing reservations to Marathas above 50-percent.
However, if the SEBC act goes through the strict scrutiny test, as discussed in United States v. Carolene Products Co. (1938),there would be more clarity on the highly contentious act. Strict scrutiny is considered the most rigorous standard of judicial review according to the American constitutional law. This scrutiny is done on account of infringement of the fundamental rights by a law or policy. As the SEBC act violates Article 14 of the Indian constitution for the non-Marathas residing in Maharashtra. There are certain parameters to the strict scrutiny test. Firstly, there must exist a compelling state interest. However, implementing the SEBC act was not crucial or necessary; rather, it was merely preferred by the Maharashtra state government. Secondly, the law must be the least restrictive in nature and narrowly tailored to achieve the desired goal. Since no reservation policy in India can breach the limit of 50-percent, the least restrictive policy would be the one that is within the said guidelines of the Supreme Court of India. The SEBC act does not pass any of the parameters as mentioned above. Hence, considering all the factors, this act transparently violates several provisions of the constitution.
A WAY AHEAD
With more than seventy years of India being independent, it is high time that the governing bodies should understand that the reservation policies could do little to no development in the society. Instead, it created a disparity in society. If numerous communities come up with the demand for giving them the status of backwardness, not only will the state deviate from its objective of maintaining social justice and following the principle of equality as mentioned in K.C. Vasanth Kumar & Another v. State Of Karnataka, it would also destroy the attempt of the Constitution makers to create a nation as per Tagore’s immortal words “Where the world has not been broken into fragments by narrow domestic walls.”
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