How state plans to steer away from 2018 pitfalls

The Maharashtra state government is planning to enact a new law for Maratha reservation in jobs and education on February 20, with a focus on calculating representation accurately and preparing the list of backward classes. The previous law was quashed by the Supreme Court for violating the 50% cap on reservation and failing to prove the backwardness of the community. The government hopes that the new law will be successful, but officials are skeptical about its legality.

MUMBAI: The state government is set to enact a new law for reservation to Marathas in jobs and education on February 20, and is reportedly taking care to mark a difference from the law enacted in 2018 by the then Devendra Fadnavis government.

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To begin with, the state will ensure the percentage of representatives of Marathas in the jobs is properly calculated. The government is also betting on the powers given to it to prepare the list of backward classes.

The Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act 2018 was quashed by the Supreme Court in May 2021, for violating the 50% cap on reservation and failure to fulfil the condition of the backwardness of the community in the Gaikwad Commission report – the basis for the quota. SC rejected the review petition moved by the state government, while its curative petition is pending before the apex court. Earlier, in 2014, the Prithviraj Chavan government had also enacted a similar law to accord 16% reservation to Marathas, which was also struck down by the Bombay high court.

After the Maharashtra State Commission for Backward Classes (MSCBC), headed by retired judge Sunil Shukre, submitted its 550-page report on Friday, a special session of the state legislature will be convened on Tuesday to table the new bill. The government has taken care to ensure its outcome is fruitful, unlike in the past.

“The survey has been thorough, covering over 25 million households, unlike just 45,000 households by the Gaikwad Commission in 2018. SC had questioned the report at the time, stating it failed to prove the backwardness of the community. The percentage of community members in government jobs was calculated against the open category percent of 48% instead of 100%. We will now argue with the correct percentage,” said an official from Mantralaya.

Another officer from the general administration department pointed to the difference in the powers of the state. “The 102nd constitutional amendment in 2018 took away power from the state to identify backward classes. The 105th amendment restored it in 2021. SC’s ruling in 2021 has also given the state powers to review the backwardness of communities. The report submitted by the commission ratifies it, making the contention for the quota stronger,” he added.

The official said that 103rd constitutional amendment under which the 10% quota for economically weaker section (EWS) was introduced, brought the Indra Sawhney judgement (1992) of capping quota to 50% to an arguable level. He said it would help the state while arguing the breach of 50% cap contention.

The officials however, are sceptical about the tenability of the new law on legal grounds. “It would be difficult to contest the breach of 50% cap of quota, for which the report needs to establish that the community is in ‘exceptional circumstances’ and ‘extraordinary situations’ which is not easy to prove. Though the state has the power to determine backwardness of any community, it still has none to breach the 50% quota,” he said.

Sanjay Lakhe-Patil, state convenor of Maratha Kranti Morcha agreed and added, “Both laws enacted by the respective governments ahead of the Lok Sabha and Assembly polls in 2014 and 2019 were quashed after the elections. The same may happen again but the community is now well aware of such pre-poll promises.”

EOM