Why the Maratha reservation is unlikely to survive a constitutional challenge

On 30 November, the governor of Maharashtra granted his assent to the Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2018. The Act reserves 16 percent of seats in educational institutions, as well as vacancies in public services, for the Maratha community. The report by the Maharashtra State Backward Class Commission that forms the basis of the Act was submitted to the state government around fifteen days before the law was passed. The government did not table the report in the legislature.

The Maratha community’s demand for reservation began around 1990, on the heels of the report of the Second Backward Classes Commission, popularly known as the Mandal Commission. The commission proposed a 27-percent reservation for India’s Other Backward Classes, but did not include the Marathas in its list of OBCs. In August 1990, the central government accepted the report, a decision that was challenged before the Supreme Court amid violent and widespread protests. In the ensuing case, Indra Sawhney vs Union of India, a nine-judge bench of the Supreme Court specified the basis on which reservations would be permitted. In a landmark verdict, seven judges of the court recognised that reservation could only be restricted to 50 percent of the available seats or posts.

Prior to the new Act, Maharashtra had already exceeded the 50-percent cap by two percentage points. Multiple inquiries have concluded that the Marathas are not a socially and educationally backward community, including those conducted by the National Commission for Backward Classes in 2000 and the Maharashtra State Backward Class Commission in 2008—specialised bodies constituted to hear complaints of non-inclusion into the central and state OBC lists after the Indra Sawhney judgment.

Since 2014, successive state governments in Maharashtra have made various attempts to meet the Maratha community’s long-standing demand for reservation—from enacting a law based on the findings of a “special committee,” rather than a backward classes commission, to submitting a 2,500-page affidavit to the Bombay High Court supporting the community’s claim to reservation. With the additional 16-percent quota, the total reservation in Maharashtra now stands at 68 percent. However, in light of Supreme Court judgments such as Indra Sawhney, it appears unlikely that the reservation would survive a constitutional challenge.

Recommendations of the state commission are ordinarily binding on the state government under the Maharashtra State Commission for Backward Classes Act, 2005. Yet, in 2014, Prithviraj Chavan, then the chief minister of Maharashtra from the Congress, disregarded the state commission’s report of 2008 and constituted a special committee to assess whether the Maratha community warranted reservations. Narayan Rane, who belongs to the community and was then the state’s minister for industries, was appointed the chairperson of the committee.

The Rane committee recommended reservations for the Marathas without affecting the quotas for Scheduled Castes, Scheduled Tribes and OBCs. Based on its report, the state government on 9 July 2014 promulgated an ordinance, which provided for a 16-percent reservation for the community. The state government issued another ordinance reserving five percent of seats in educational institutions and public employment for Muslims. This was based on a 2013 report by a study group chaired by Mehmood-ur-Rehman, an officer in the Indian Administrative Service.

Soon after, a slew of petitioners challenged the ordinances. They argued that classifying the entire Maratha community as socially and educationally backward in disregard of all the state commission’s reports was “arbitrary.” Moreover, they held that constituting the Rane committee and the Mehmood-ur-Rehman study group was not supported by any law, and that the Rane committee’s data, collected over a few days, was an unrepresentative sample geared to suit “the preconceived object of providing reservation for the Maratha community.”

The Bombay High Court issued a stay on the Maratha quota on 14 November 2014. The court, however, permitted the 5-percent quota in educational institutions for Muslims as a special backward category. The Supreme Court confirmed the stay order the following month.

The Bharatiya Janata Party had taken charge of the state government with Devendra Fadnavis as the chief minister on 1 November that year. Within three months, his government enacted the Maharashtra State Reservation for Educationally and Socially Backward Category Act, 2014, granting a 16-percent reservation to the Maratha community, with retrospective effect from 9 July. The new Act excluded the only quota that the high court had allowed—the 5-percent reservation for Muslims. Once again, the Maratha quota was challenged on the same grounds as earlier. In April 2015, the Bombay High Court imposed a stay on the law as “the provisions of the amended Act … are similar to the provisions of the Ordinance.”

After its chairperson’s tenure ended in March 2016, the state commission became almost defunct. It was reconstituted in January 2017 under a new chairperson, Sambhajirao Mhase, a retired high-court judge who had publicly supported reservation for Marathas. The following month, the Maratha leaders Ajay Sahebrao Baraskar and Balasaheb Asaram Sarate moved the Bombay High Court to have the case referred back to the state commission. On 4 May 2017, the court acceded to the government’s request to place data before the commission to justify its decision to grant the 16-percent reservation in the 2014 Act. This brought the litigation against the law to a standstill, as the courts awaited data to be produced to support a decision already made about the quota.

The 2018 Act, which reportedly relies on the findings of the commission, repeals the 2014 Act. According to a November report in The Hindu, the state commission concludes: “Miniscule percentage of Marathas in technical, medical, agriculture, commerce and other branches of university shows the community’s social incapability, financial and educational weakness.” This assumes importance in view of the exceptions to the 50-percent cap for reservation carved out in the Indra Sawhney judgment.

Thirty years before the Indra Sawhney judgment, in 1962, the Supreme Court first held that reservations could not exceed 50 percent, in the case of MR Balaji vs State Of Mysore. While seven of the nine judges in the Indra Sawhney case upheld the limit, four judges—in an opinion authored by Justice Jeevan Reddy—specified that the only exception to the 50-percent cap could be an “extraordinary situation” for a population residing in “far-flung and remote areas” on account of being out of the “mainstream of national life.” Justice PB Sawant was less categorical; he found “no legal infirmity” in a reservation exceeding 50 percent, the validity of which would have to be judged case by case. In his summary, however, he held that “ordinarily, the reservation should not exceed 50%.”

The rule that emerges from Indra Sawhney therefore, is that the 50-percent cap is inviolable. The only exception to the 50-percent rule permitted by reading these two opinions together is for communities demonstrably outside the mainstream of national life. Such an exception has been made in Maharashtra itself—in 1995, the state allowed an additional 2-percent reservation for the Gowari tribal community.

According to The Hindu’s report, the state commission indicated that the Maratha community also faces an “extraordinary situation” that merits a 16-percent reservation. The findings of the commission will be instrumental in judging if the Marathas are socially and educationally backward, as well as inadequately represented in posts and services of the state, as stipulated by Articles 15(4) and 16(4) of the constitution.

In addition to reports by previous state and national commissions, a 2017 Economic and Political Weekly report also implied that the Marathas are a forward community. It classified the community as a “predominantly landowning caste and a politically and economically dominant group in the rich western state of Maharashtra.” The only circumstance in which the government may override the backward-class commission is if its recommendations are “impossible or perverse.” In such a scenario, the Act can be struck down, as the Supreme Court held in 2015 while striking down the central notification that classified Jats as OBCs.

Before the Maharashtra assembly passed the bill, Fadnavis told the media, “We will give quota to the Maratha community on the lines of the Tamil Nadu model and we will do it as per the provisions of the Constitution.” In 1993, the Tamil Nadu government had pressurised the central government to amend the constitution and place its reservation law in the Ninth Schedule.

At the time, laws listed in the schedule could not be judicially reviewed. In 2007, this judicial immunity changed when nine judges of the Supreme Court held unanimously in IR Coelho vs State Of Tamil Nadu that laws under the Ninth Schedule are to be tested against the same metric as constitutional amendments—by judging if they damage or destroy the basic structure of the Indian constitution. The Supreme Court had recognised in 1975 that judicial review is fundamental to the basic structure of the constitution. Hence, after IR Coelho, laws in the Ninth Schedule that violate the protected freedoms and liberties of Articles 14, 15, 19 and 21—all key elements of the constitution’s basic structure—would be struck down.

Nonetheless, Tamil Nadu’s reservation law remains in the statute books. In 1994, the Voice Consumer Care Council first challenged the law’s inclusion into the Ninth Schedule. But the VCCC petition never saw its day in court after the verdict in IR Coelho. In July 2010, the Supreme Court dismissed the petition without referring at all to the Ninth Schedule. The court directed the state government to revisit its quota, based on quantifiable data to be placed before the Tamil Nadu state commission. In July 2011, the commission filed a report justifying the 69-percent quota, which was challenged before the Supreme Court for not being based on valid criteria. The matter awaits a final hearing.

As decisions of nine-judge benches of the Supreme Court, the judgments in IR Coelho and Indra Sawhney carry great weight. In this light, it is far-fetched that a challenge to the Maharashtra law can successfully be averted by placing it in the Ninth Schedule.