Strength vs reason: On legislation and reservation to certain social groups

The Bill to grant reservations for Marathas may not pass judicial muster

The legitimacy of any demand for a change in public policy lies in the rationale behind it and not in the strength in support for it. There is a reason why even after States have bowed down to popular demands for reservation to social groups which were not considered backward earlier, their actions have been reversed or nullified by the higher judiciary. This has been true of previous pieces of legislation passed by the Maharashtra government to grant reservation to the Maratha community. Yet, the community’s political dominance is evident in the fact that the State Assembly unanimously passed a Bill on February 20, granting Marathas 10% reservation in education and government jobs. This is the third time in a decade that such legislation for the community has been passed; earlier, there was the Socially and Educationally Backward Classes Act, 2018 under the Bharatiya Janata Party-Shiv Sena-led coalition. The two pieces of legislation are similar, but the current Bill is based on a report by the Maharashtra State Backward Class Commission, which expands the total quota for reservations to 72% with the inclusion of 10% for Marathas after the application of a “creamy layer” criterion. This also includes 10% reservation for “Economically Weaker Sections” focusing on the poor among the Maratha community.

It is understandable why the political class in Maharashtra has chosen the easier, even if legally dubious, path of expanding the reservation pie. The other alternative of treating Marathas as a backward class community and providing reservations from within the 19% quota for OBCs was always going to be a problem with OBC groups expressing opposition. But the legislation is bound to face problems if and when it is challenged in the Supreme Court. The top court had struck down the 2018 Act in May 2021 by citing the Indra Sawhney judgment (1992) that limited reservations to 50% and also held that only the Union government is empowered to identify socially and educationally backward classes to include them in the central list to avail reservations. Yet, the Court’s November 2022 judgment upholding the 10% quota for EWS, over and beyond the 50% limit, has opened a Pandora’s box. The vagaries of addressing demands of politically dominant groups such as the Marathas, which have stratifications due to significant intra-community variations in terms of income and educational outcomes, suggest a case for a comprehensive socio-economic census alongside the delayed decennial Census. Such a census will establish the true nature of backwardness and discrimination across States and could even clarify a new means of providing affirmative action based on the data while staying true to principles of social justice.