Why the Maratha reservation is unlikely to survive a constitutional challenge

06 December 2018
With the new reservation act granting a 16-percent quota to the Maratha community, the total reservation in Maharashtra now stands at 68 percent.
Anshuman Poyrekar / Hindustan Times / Getty Images

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.

Malavika Prasad is an advocate and doctoral fellow at the National Academy of Legal Studies and Research. She teaches democracy and the Indian Constitution through experiential learning.

Keywords: Maharashtra State Reservation for Socially and Educationally Backward Classes Act, 2018 Maharashtra Mandal Commission Maratha Indra Sawhney Ninth Schedule of the Constitution Bombay High Court IR Cohelo Constitution