“The Supreme Court has erred”: Former Madras HC judge K Chandru on EWS and Maratha reservations

20 July 2019
SR Raghunathan/The Hindu
SR Raghunathan/The Hindu

In January, Prime Minister Narendra Modi announced ten-percent reservation for the “economically weaker sections,” or EWS, of the populace. The pool of eligible citizens excludes members of the Scheduled Castes, the Scheduled Tribes and the Socially and Educationally Backward Classes—commonly referred to as the Other Backward Classes. The constituent assembly and several Supreme Court judgments have held that economic criterion cannot be the sole basis for granting reservation. But in one stroke, Modi overturned established constitutional principles underlying India’s reservation policy—primarily, that it is based on social, and not economic, backwardness.

Social backwardness does not arise from poverty. Till January, the Constitution only provided reservations to the SCs, the STs and the SEBCs—social groups that have historically been excluded or marginalised. This included groups that were considered “impure” in the past, that lived in remote and inaccessible areas, or that pursued their traditional occupations—such as farming and weaving—which made them socially and educationally backward.

But these cardinal principles were set aside in January, when the parliament passed the Constitution (One Hundred and Third Amendment) Act. The act amended Articles 15 and 16 of the Constitution to empower the Indian state to grant reservations to the EWS among socially advanced groups—including the upper castes. The Modi government invoked the new constitutional provision to grant ten-percent reservation for EWS, thereby raising the quantum of reservation in central government jobs and educational institutions to 60 percent—effectively setting aside a Supreme Court-mandated cap of 50 percent on reservations.

In Maharashtra, the reservation policy has been under the spotlight since last November, when the state’s Bharatiya Janata Party-led government enacted a law to grant 16-percent reservation for the Maratha community. In June this year, the Bombay high court upheld the law, though it reduced the quota to 12 percent in educational institutes and 13 percent in government jobs. The court upheld the judicial challenge even though the state’s reservation quota now exceeded 60 percent.

Both the reservation policies were challenged before the Supreme Court, which did not issue a stay order against either. In sharp contrast, the apex court had imposed a two-year stay when, in 1990, the VP Singh government sought to implement 27-percent reservation for the OBCs. The stay was finally lifted when a nine-judge bench of the court upheld the policy in Indra Sawhney vs Union of India. Likewise, in 2007, when the central government sought to introduce 27-percent reservation for the OBCs in central educational institutions, the court had stayed the policy for one year before it upheld its constitutionality.

Ajaz Ashraf is a journalist based in Delhi.

Keywords: reservation Maratha community Supreme Court caste Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2018 Narendra Modi
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