This Article has been authored by Shivam Kunal, a second-year law student at Institute of Law, Nirma University, Ahmedabad.
India has a unique flair in protecting the rights of its citizens. The constitution of India provides Fundamental rights to its citizens and also extends certain rights to non-citizens. Fundamental rights and exclusivity cannot co-exist in our county, be it the equality before the law, equal opportunity, freedom of speech and expression, right to life or any other right guaranteed under Part III of the constitution. The ambit of limitation and reasonable restriction extends to all of the said provisions. Article 16 provides for equal opportunity in public employment; however, the state is free to enact a discriminating provision per se if it qualifies under the set criteria of reservation for public welfare. This allocation of power to the state shall be exercised within the horizons of reasonability and free from any arbitrariness. The apex court in Indira Sawhney case has asserted that the accumulated cap of reservation must not exceed 50 percent. In Maharashtra, the enactment of Socially and Economically Backward Classes (SEBC) Act, 2018, increased the total reservation provided to the SC, ST, OBC & SEBC to 64 and 65 percent in education and government jobs, respectively. A PIL in the Bombay High Court was filed, and the court upheld the validity of the Act but reduced the reservation from 16 percent to 12 and 13 percent in education and government jobs. The said decision of the Bombay High Court got challenged and is pending in the Supreme Court. This article aims to critically examine the merits of the case through constitutional contrivance.
Maharashtra has a population of 9.7 crores, and out of which, 10.2 percent are Schedule Caste (SC). Marathas are a dominant caste in the state of Maharashtra. They form almost one-third of the entire state’s population. It is imperative to highlight that the Maratha population is not homogeneous; the caste primarily evolved from kunbis. They used to be warriors in ancient times. Out of the 19 chief ministers elected in the state, 10 of them have been Marathas. It is an unhidden fact that Marathas are politically and socially dominant caste in the state.
P.R Krishna was critical of the issue, and he said-
“The Socially and Educationally Backward Classes commission popularly known as the Mandal Commission had recommended in its 1980 report 27 percent reservation in jobs for other backward classes but considered the Marathas as a forward caste.”
In furtherance of the issue, he said-
“The inclusion of a community in SEBC will depend on the status of the community in the traditional social system. Poor landholding or economic deprivation are not the criteria for inclusion in the list of backward classes.”
The Constitution of India and Maratha Revolution
First amendment Act, 1951, saw the inclusion of clause (4) in the constitution. The principles of Article 46 were enacted in line with Article 15. In the case of Champakam Dorairajan, the court was of the opinion that the Directive Principle of State Policies have to work as a subsidiary to the Fundamental Rights. Even back in 1951, the principal fact of issue remained the determination of backward class for the purpose of reservations and further, the quantum of the reservation to be provided. The reservation was a stepping stone to implicate the concept of equal protection of the law in the Indian society. Scheduled Caste & Scheduled Tribes are defined in the constitution, but the backward class has been left upon the judiciary and legislative to ponder.
In the present matter, the Maharashtra government provided 16% reservation to the Marathi caste in education and government job through the enactment of the SEBC Act, 2018. Marathi caste shall not even be considered a backward class owning to the rich history and the dominant political position of the caste in the state. In M.R. Balaji v. State of Mysore, the apex court prohibited the criteria of caste to be used as the sole basis of providing reservations. In R.Chitralekha v. State of Mysore, it was asserted that the classification of SEBC can be made after a thorough scrutiny of the economic condition and occupation of the community in question. The Gaikwad commission had resorted to controversial yardsticks for determining the quantum of reservation. The High Court relied on the findings of the 11-member Maharashtra State Backward Class Commission (MSBCC) headed by retired Justice G M Gaikwad.
Report submitted by the committee was favorable for the Maratha’s cause as they were found to be socially, economically and educationally backward. The findings of this committee are questionable on various grounds. The number of households surveyed had a total of 45,000 families from two large villages. The sample size is too small to determine a policy suited to one-third of the population of entire state and the sample has also excluded Mumbai. There were more than 50% Marathas in the sample. The committee reported that there was an increase in the number of suicides by Maratha farmers in 2013-2018 but, the reason for the same was not asserted. Whether the death was due to an economic crisis or agrarian crisis remained uncertain.
The absurdity of facts presented by the committee is evident from the following-
“The Commission also attached great importance to its finding that while 69% Maratha families sought medical treatment for jaundice, 9.65% sought treatment from tantriks while 0.54% left it ‘to the mercy of god.”
Average literacy in the rural parts of the state is 77%, and the committee reports suggested that 13.42% of Marathas were illiterate while the rest were at least primary level educated. The findings related to the owning of land were again an ignorance of the cultural practice in the state, the division of land amongst multiple owners has been a result of the inheritance laws and the same was disregarded or not appraised in the committee reports.
The petitioner contented the SEBC Act to be unconstitutional based on the following legal reasons:-
1. Absence of legislative competence
2. Impermissible classification
3. Violation of basic structure
4. Terms of reference and absence of relevant data
The petition was focused on the after-effects and drawbacks of providing reservations in the medical sector. The question of sacrificing merit to appraise representation comes into play. The apex court in Preeti Shrivastava case had asserted that the legislation should not compromise with the merit involved in the subject matter under any circumstances. The same position was further asserted in the landmark case Indira Sawhney v UOI. The soul of Article 16 clause 4 is anti-merit in nature; rather, it aims to test the merit of the candidates, but such a test calls for equal opportunity to all the candidates. The approval of the SEBC Act takes the total reservation in medical examinations for the SC, ST, OBC & SEBC to 74%, leaving 26% of the seats for the general category students to vie for.
Conclusion and Recommendation
Reservation policy was initially adopted to respect the principle of equal protection of law enacted through Article 14. In recent times, it has been to meet political colors and embrace the fallibility of common people through biased legislations. The instance of jaat reservation and the critical involvement of the supreme court in the devaluation of an unprecedented and biased demand must be applauded. In the case of Captain Gurvinder Singh, the demand for reservation, the supreme court relied on the findings in the Indira Sawhney case and struck down the merits of the case. The ceiling of 50 percent was imposed to ensure that the accumulated reservation shall not create an excessive gap amongst the communities and defeat the very purpose of its enactment. It adversely affects the merit and opportunity provided to the general section of our country. The court is yet to ponder over the issue of overlap amongst the clause and its parent section. Does the excessive reservation under Article 16 clause (4) defeat the heart and soul of Article 16? The supreme court has a big task to ascertain whether the classification made in this case is class legislation or a reasonable classification. The entire case of the state revolved around the “exceptional circumstance” that allows for a provision of reservation to escape beyond the 50% cap. In the instant matter, it will be frivolous to consider the situation of Marathas so degraded and devalued that to be considered an exceptional circumstance, these are nothing but desperate attempt to countermand the boundaries set on reservation by the apex court.
The petitioner in their argument reiterated the findings of the article stating-
“Material on record suggest that Maratha is a politically dominant class and there is no element of social oppression and/or social discrimination or at least social segregation of this community.”
The Apex Court in Abdul Khadir v. State of Mysore asserted that the basis of classification based on caste is the root of all the maladies. Our politics has turned entirely into caste-based politics. These findings were monumental in how they shaped the socio-political affairs in this country for more than three decades. Due diligence and a considerate approach towards the exploitation of extra-ordinary provisions is the need of the hour.