A five-judge Constitution Bench of the Supreme Court recently held the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act of 2018 as unconstitutional.
This Maratha reservation law provides reservation benefits to the Maratha community in admissions and government jobs.
However, the implementation of this reservation took the quota limit in the State in excess of 50%.
Re-examine the 50% reservation cap set by the Mandal case ruling:
The Supreme Court also held that this law does not qualify for the “exceptional circumstances” mentioned in the Indra Sawhney case.
Earlier the Supreme court mentioned that it may re-examine the 50% reservation cap set by the Mandal case ruling of 1992(known as Indra Sawhney case).
But during the recent verdict, the court mentioned that there is no need to revisit the 50% reservation cap. The court mentioned that the arbitrary 50% ceiling set by the Mandal case is now constitutionally recognized.
What will be its impact socio-political of the order?
Marathas, who constitute 32 per cent of state population, are a major political force to reckon with in Maharashtra.
The discontent amongst the community is likely to manifest once again. The divide between rich and poor Marathas could manifest in new form of politics and protests.
The complex reservation politics had set the process of polarisation between Marathas versus OBCs. With SC’s order, it is likely to sharpen the divide on reservation.
Challenges to Maratha reservation:
As argued by NGO Youth for Equality and others before the courts, there are three broad challenges to Maratha reservation:
1) The Maratha caste does not qualify as SEBCs under several Articles of the Constitution and the community’s claim has been previously rejected by the Mandal and other State Backward Classes commissions.
2) The 12 and 13 per cent reservation to the Marathas would breach the 50 per cent cap on reservation.
3) The Maharashtra legislature lacks the legislative competence to enact the Maratha Reservation Act after the 102nd Amendment to the Constitution came into force on 11 August 2018.
OBC Reservation in India:
- Reservation for Other Backwards Classes (OBC) was introduced based on the Mandal Commission Report (1991). The quota for OBCs is 27% in government jobs and higher educational institutions.
- However, there is a concept of ‘creamy layer’ with respect to the OBC reservation. Only those from OBC who comes under Non-Creamy Layer would get OBC reservation.
- The creamy layer concept brings income and social status as parameters to exclude some of the privileged members of OBC from the extent of reservation.
- This concept also keeps a check to ensure that the benefits of reservation do not get extended to subsequent generations.
50% Cap on Caste-Based Reservations:
- In Indra Sawhney vs Union Of India, 1992, the Supreme Court of India capped caste-based reservation, ruling that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”.
- Since this Court has consistently held that the reservation under Articles 15(4) and 16(4) should not exceed 50% and the States and the Union have by and large accepted this as correct it should be held as constitutional prohibition and any reservation beyond 50% would liable to be struck down.
- While introducing the bill for Economic Reservation in 2019, then Finance Minister contended that the 50% cap on reservations imposed by the Supreme Court was only for caste-based reservations, and the Economically Weaker Section (EWS) reservation won’t be impacted by it.
Way Forward for applicability of Reservations:
- As mentioned by the judgment itself the National Backward Classes Commission must publish a fresh list of SEBCs, both for states and the central list.
- Till the publication, the existing lists operating in all states and union territories can continue.
- The government has to subclassify the Backward Classes like in Tamil Nadu, Andhra Pradesh, West Bengal etc.
- This will provide the benefit to intended beneficiaries. Since the government has already appointed Justice G Rohini Panel on Sub-categorisation of OBCs. The Panel has to fast pace the sub-classification process.
- The government has to remove the well-off sections from the reservation policy.
- The government can achieve this by moving away from reservation based on a citizen’s conditions rather than community-based reservations.
The government under the 103rd Constitution Amendment Act, 2019 again provided a 10% reservation for the EWS in India. The Act also amended Articles 15 and 16 correspondingly.
The democracy is an essential feature of our Constitution and part of our basic structure.
If the reservation goes above 50% limit which is a reasonable, it will be slippery slope, the political pressure, make it hardly to reduce the same.
To change the 50% limit is to have a society which is not founded on equality but based on caste rule, the Supreme Court observed in its judgment in Maratha Quota case while reiterating that reservation under Article 16(4) should not exceed 50% except when there are extraordinary circumstances.