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Maratha quota in Maharashtra: Legal trouble in store?

Students’ parents, OBCs may challenge move to increase total quota to 68% in court; tough to prove mandatory ‘exceptional circumstance’

mumbai Updated: Dec 01, 2018 10:18 IST
Ketaki Ghoge
Ketaki Ghoge
Hindustan Times
mARATHA,mAHARASHTRA,BACKWARD CLASSES
Celebrations at the BJP office in Nariman Point on Thursday.(BHUSHAN KOYANDE)

The Maharashtra government’s legislation to grant 16% quota to the Maratha community is headed for a long legal battle, as it will take the reservation beyond the apex court mandated 50% ceiling in 1992.

Currently, the state has 52% quota, with the additional 2% introduced in 1994 to include the Gowari tribe as special backward class. With the new amendment for Marathas, the reserved quota for jobs and education in the state is now set to reach 68%.

Experts on law and Constitution said the new legislation will face a legal challenge as soon as the government issues a notification for it and it is likely to get stayed in the coming weeks. They also pointed out that the BJP-led government’s legislation is a political move that is unlikely to withstand judicial scrutiny. The challenge will come largely from students and parents of the open category, whose quota of seats will now come down to 32%. The Other Backward Class groups also plan to challenge the law as they are wary of it ultimately diluting their quota.

“This is an unconstitutional amendment that breaches Article 14 of the Constitution that espouses equality. Reservation was to be made in exceptional circumstances and there are various legal precedents for this. The 1992 judgment that capped the reservation at 50% allowed a hike only in case of extraordinary and exceptional circumstances,” said Professor Ulhas Bapat, a constitutional expert.

He said that “exceptional circumstances” can perhaps translate into a rare case scenario where a tribe or extremely backward community left behind gets 1% or 2% quota. It can’t translate into 16% reservation for a politically dominant community.

Shreehari Aney, former advocate general of Maharashtra, also said by creating special category and hiking quota beyond 50% instead of accommodating Marathas within the existing backward class category, the state was on a weak footing.

“The state has to offer verifiable data to show exceptional circumstances exist to hike quota beyond 50%. This data has to be in the public realm. It can’t be on the basis of a report that is not public. The data revealed so far shows Marathas are economically, socially backward and deprived, but what makes their case special than the existing backward classes? How is this case exceptional,” Aney asked.

The state bill has justified the reservation on the basis of the Backward Class Commission report, which has, however, not been made public. While the Commission carried out several surveys to identify social, educational status of the Maratha community, there has been no door-to-door census. With caste census figures not public, such data is likely to face challenge from other stakeholders.

The bill has sought to justify hiking quota on the grounds that overall backward population in the state is now 85%. Terming it exceptional, the amendment has further said if Marathas (who make 30% of the population) are accommodated within the existing OBC quota, it could lead to “lead to unwarranted repercussions in the harmonious co-existence culture of the state”.

Bapat and Aney questioned the reasoning. “Reservation can’t be granted because the government can’t handle law and order repercussions. Dr Babasaheb Ambedkar said in the constituent assembly that even if the backward class population is 70% or more, the reservation quota cannot go beyond 50%,” said Bapat.

The BJP  government defended the bill. “When we moved apex court to protect the earlier ordinance, we were told that backwardness for a community can only be decided by Backward Class Commission. So, we formed a commission. This is a statutory body that has said that Marathas are backward and deserve reservation. We don’t expect the High Court to stay our legislation, even though a long legal battle may like Tamil Nadu may be on cards,” said BJP minister Vinod Tawde, who is a member of the sub-committee on Maratha reservation.

First Published: Nov 30, 2018 00:51 IST