Reservation Row: The political and legal imperatives before approving the Maratha quota
In Maharashtra, we are seeing the growing pauperisation of the peasantry. Thus, after a caste census, removing the 50% reservation cap is an attractive solution
The inefficacy of the state in meeting the vociferous demand for reservation by various castes across India calls for some urgent political and legal imperatives to ensure social harmony and peace. Poverty or inequality is an organic derivative of the skewed developmental policies and the problem can be addressed only through State intervention.
Since the Indian State has always been non-committal to the eradication of poverty, a large chunk of the Indian populace has been increasingly facing acute or extreme poverty. However, this destitution is now increasingly referred to as “economic backwardness”, which, many hope, can be reversed by providing reservation on economic grounds.
Official debates on backwardness in India have undergone a major overhaul as the Indian state is keen on legitimising “economic backwardness” as a new political category. Economically backward is now a peculiar class which is financially weak, though it was not historically subjected to social discrimination.
The National Democratic Alliance (NDA) government showed sharp political astuteness by establishing new categories such as ‘Socio-Economically Disadvantaged Group’ (SEGD) in 2020. Given that economic backwardness is widespread and deepened, promising reservation to the economically backward helps in pampering and winning over a large vote bank, though such reservation is not entirely unjustifiable.
However, many groups in India use caste as a channel to negotiate with the state, making the political scenario more complex to tackle. Increasing pauperisation of the peasantry, validated by the ever-decreasing contribution of agriculture to the Indian economy, is the main reason compelling the Marathas in Maharashtra, Patidars in Gujarat, Gujjars in Rajasthan and Jats in Haryana and Uttar Pradesh to demand for reservation on the basis of caste.
Indeed, around the country, a similar demand is also being made to lift the 50% ceiling, imposed by the apex court in 1992. However, the central question is does it make sense to lift the ceiling on reservation in the absence of real on-ground knowledge of the size and multiplicity of beneficiaries seeking quota?
In Maharashtra — as in fact, around the country — we are seeing the growing pauperisation of the peasantry. Thus, removing the 50 per cent cap on reservations is an attractive solution. However, a caste census must precede such a move, or else what we will see is a simultaneous erosion of the constitutionally protected federal system.
The relevance of a caste census
In the absence of up-to-date caste data, the Supreme Court and several state governments have expressed their inability to implement welfare policies. Even existing reservation policies have been put on hold in states for years on end due to the absence of reliable empirical data sought by the Supreme Court — we saw that happen as recently as two years ago when the political reservation guaranteed to candidates from Other Backward Classes (OBCs) in local bodies in Maharashtra and Madhya Pradesh was put on hold in some seats by the Supreme Court, which sought fresh caste data from the government.
Several backward class commissions including the historic Backward Classes Commission of 1953 established a need for reliable caste statistics. Neither the advocates nor the opponents of reservation policy in India have any recent statistical data on caste to rely upon.
The last caste census was conducted in 1931 when the population of India was just 270 million. The Mandal Commission relied on the 1931 census and approximated the OBC population as 52 per cent. Other claims and counter-claims about the OBC population vary from 36 to 65 per cent. Maratha and other similar castes were excluded from the list as the current reservation is based on the 1931 census.
Amid such chaos, caste census becomes vital to ascertain the extent of deprivation of various castes. Such a census would measure the economic and social well-being of all castes and provide a wealth of demographic, educational and policy-relevant information on the socio-economic conditions of all castes. This can go a long way in developing and fine-tuning evidence-based social policies and curbing undemocratic incivility.
The complex nature of backwardness, whether due to caste or economic reasons, can be scientifically and comprehensively gauged only through an exercise of enumeration. Data on caste in India today is scanty. It has been observed that the unavailability of caste statistics obstructs the implementation of various welfare policies.
For example, when it came to implementing welfare schemes for nomadic tribes, the Ministry of Finance informed the National Commission for Denotified Nomadic, Semi-Nomadic, and Nomadic Tribes (NCDNT) in January 2018: “Unless Census is carried out and used for the preparation of state-wise and community-wise lists, any further action will not focus on the intended beneficiaries.” Moreover, since the peasantry is a sharply stratified entity, only the caste census can present a more sanguine view.
A political knot
Though many middle castes have made streets the battleground for reservation, they cannot neglect the mediation of the SC in this matter.
The SC set the limit on reservation to 50 per cent in the MR Balaji v State of Mysore case. Thereafter, its rationale was questioned in various other SC cases until 1993, whereas in the Indra Sawhney case, the nine-member SC bench held that reservation should not exceed 50 per cent.
The Maharashtra State Backward Class Commission (2017) recommended reservations for the Marathas in educational institutions and public services. Based on this, the state passed the Socially and Educationally Backward Classes Act, 2018, which granted 16 per cent reservation to the Marathas. The Bombay high court upheld the constitutionality of this act in 2018, but the SC subsequently overruled it in the Dr Jayshree Patil vs State of Maharashtra (2020) judgement, stating that it violated the 50 per cent cap set by the constitutional bench in 1992. The court also questioned the methodology followed by the commission and the conclusion drawn. Neither the first and second Backward Class Commissions nor the state commissions in Maharashtra had considered the Maratha community backwards.
Against this backdrop, the court questioned the reasoning of the 2018 Gaikwad Commission in recommending reservation to the Marathas. In the Indra Sawhney case, the SC had categorically said that 50 per cent is the rule and only in certain exceptional situations can the said rule be relaxed. The Maharashtra government had failed to prove this in the case of the Maratha reservation.
Yet, in 2019, the 103rd Constitutional Amendment, the constitutionality of which was upheld by the SC in Janhit Abhiyan v Union of India (2021), granted 10 per cent reservation to the upper castes who are economically backward, despite the existing reservation for the SC, ST and OBCs. The government relied on data that measured poverty based on a multidimensional poverty index. Hence, one could conclude that the 50 per cent ceiling is not so sacrosanct.
Dilip Chavan teaches at the SRTM University, Nanded and Nitish Nawsagaray teaches at the ILS Law College, Pune