Missing the Mark

How a Supreme Court judgment endangers the OBC status of several communities

A 2016 protest by Marathas in Maharashtra, demanding, among other things, reservation for the community. The Supreme Court's judgment on reservation for Marathas, however, will have repercussions beyond the Maratha community and Maharashtra. Dhiraj Singh / Bloomberg / Getty Images

 Beginning in 2016, the Maratha community staged several agitations in Maharashtra. One of the key demands of these agitations was reservation for Marathas in government jobs and educational institutions. After sustained political pressure, the Maharashtra government passed the Socially and Educationally Backward Class Reservation Act, 2018, which provided 16-percent reservation for the community. This increased the total percentage of reservations in state-government jobs and educational institutions beyond the 50-percent limit for such quotas, as mandated by the Supreme Court, in 1992, in Indra Sawhney vs Union of India. The constitutionality of the law providing reservation to Marathas was tested by a five-judge constitution bench. On 5 May, the court struck down the Maharashtra law as unconstitutional.

The court unanimously held that the Maratha community is not a socially and educationally backward community, and that the Maratha case did not demonstrate the “extraordinary circumstances” needed to exceed the 50-percent ceiling for reservations, as stipulated in the Indra Sawhney case. The court, however, also made pronouncements that have repercussions beyond Maharashtra and the Maratha community. 

The Supreme Court, while passing the judgment on reservations for Marathas, was also testing the constitutional validity of the Constitution (One Hundred and Second Amendment) Act, 2018. The five judges on the bench differed on one important question: whether the act abrogated the power of the states to identify Socially and Educationally Backward Classes, also known as Other Backward Classes. It was held by a three-to-two majority that the hundred-and-second amendment curtailed the powers of the states to identify OBCs. This meant that the power to identify OBCs would now lie exclusively with the centre. The court’s confused interpretation of the amendment has resulted in the curtailment of the historical and constitutional powers of the states to identify OBCs through state-specific lists. The decision undermines the federal distribution of powers between the centre and the states in identifying OBCs, which is particularly tragic given the progressive role states have played in ensuring OBC rights. It also endangers the OBC status of several communities that are identified as OBCs by states, but not by the centre. 

Unlike in the case of Scheduled Caste and Scheduled Tribe communities, where the arbiter of a community’s claim for SC or ST status is the central government, the power to decide the legitimacy of the OBC claim has been split between the central and state governments. Until now, besides the central government’s statewise list of OBCs, each state has its own list of OBCs. The central list is used in providing reservations in central-government jobs and educational institutions, or availing central-scheme benefits and facilities within the states. The state list is used to provide similar reservations pertaining to recruitment in state-government services or admission to state-run educational institutions, or for state-government schemes and facilities. 

Ravikant Kisana is an Associate Professor of Cultural Studies. His research and writing are at the intersections of caste, gender and urbanisms. 
Disha Wadekar is an advocate practising in the Supreme Court of India and works on constitutional and anti-discrimination law. She has appeared in constitution bench matters like the Sabarimala temple entry case and reservation in promotions case.