Maratha quota valid but needs to be cut to 12-13%, says Bombay HC

india

Updated: Jun 28, 2019 00:40 IST

The Bombay high court upheld on Thursday the constitutional validity of reservations in jobs and education granted to the Maratha community in Maharashtra but trimmed the quantum of the quota in an order that assumed political significance ahead of assembly elections later this year.

A division bench of justices Ranjit More and Bharati Dangre said the state government had the competence to create a separate category of Socially and Educationally Backward Class (SEBC) and grant reservation to the Marathas under it.

But the court reduced the 16% quota, granted to the community through a state law last year, to 12% in education and 13% in jobs, as recommended by the State Backward Classes Commission.

“We hold and declare that the state government possesses legislative competence to create a separate category of Socially and Educationally Backward Class (SEBC) and grant reservation,” the court said.

The court said it was aware that granting the Maratha quota breached the 50% limit on caste-based quotas clamped by the Supreme Court in a landmark 1992 judgment.

“However, in exceptional circumstances, the 50 per cent (limit) can be exceeded if it is based on quantifiable data,” the court said.

In the last decade, quotas given to several protesting communities – such as Jats, Gujjars and Patidars – have been quashed by the higher judiciary because they violated the 50% ceiling set by the apex court. A section of the Marathas, the Kunbis, are already entitled to reservation under the Other Backward Class (OBC) category.

With this judgment, Maharashtra now has the second-highest quantum of caste-based reservations in the country at 64-65%, after Tamil Nadu, which has 69% reservations protected by a law added to the ninth schedule of the Constitution, which acts as a shield against judicial review, in 1994.

The high court decision is a boost for chief minister Devendra Fadnavis, who is seeking re-election in assembly elections scheduled for later this year.

Fadnavis hailed the verdict even as the state government hinted that it would move the HC to reconsider the 16% quota. “We have won a big battle today,” he said.

Those opposing the quota, including medical aspirants, said they will approach the Supreme Court on the ground that the judgment violated the norms laid down by the top court in its 1992 judgment, known as Indira Sawhney vs Union of India, that imposed a 50% cap on reservation.

“The SEBC reservation is unconstitutional and we will challenge it in the Supreme Court (SC),” said Ashwin Deshpande, counsel to one of the medical aspirants.

In its election campaign, the Bharatiya Janata Party (BJP)-Shiv Sena coalition is likely to underline that a similar law brought by the previous Congress-Nationalist Congress Party (NCP) government in 2014, granting 16% quota to Marathas, had failed to win judicial backing and was quashed by the high court.

When the ruling coalition had passed the law in 2018, it had insisted that its decision was based on the 2018 recommendations of the Maharashtra State Backward Class Commission (MSBCC), which is empowered to decide on the backwardness of a particular community.

The BJP-Sena alliance had won 42 of the state’s 48 Lok Sabha seats in the recently concluded general elections.

“The 2019 poll results show the Marathas backed the way the state government handled the reservation issue. The Fadnavis government has been quick on its feet and responsive. But even then, nearly 30% of the community vote went to NCP. This support base of the NCP could now get even more eroded with this court verdict,’’ said Nitin Birmal, a political analyst with the Centre for the Study of Developing Societies (CSDS).

Fadnavis informed the assembly about the HC ruling, and thanked political parties and Maratha organisations for their support on the issue. The HC also endorsed the quantifiable data of the MSBCC and upheld the “extraordinary and exceptional circumstances” mentioned in its report to provide quota to Marathas, the CM said.

The Opposition played down the judgment, with the Congress saying its government had first proposed the quota. “This decision is a culmination of a legal process that was started by our government in 2014,” said state Congress chief Ashok Chavan.

As news of the judgment spread, celebrations broke out outside the court and spilled on to the streets of Mumbai. Maratha activists greeted each other with hugs and handshakes and the chants of “Jai Maratha”, “Ek Maratha Lakh Maratha” (One Maratha is equal to 100,000 Marathas). Some waved saffron flags with the picture of 17th century warrior king Chhatrapati Shivaji.

“This will certainly help the entire Maratha community as this reservation will create various opportunities for them,” said PB Sawant, a former SC judge and part of the committee formed by the Maratha Kranti Morcha during its 2016 protests.

The Maratha community, which roughly forms a third of Maharashtra’s 114 million people, has demanded reservations for decades, and staged large protests and marches that brought major cities, including the state capital Mumbai, to a standstill in the past three years. According to government records, at least 40 persons committed suicide during this period.

In 1994, Maharashtra breached the 50% limit by introducing a 2% quota for the Gowari tribe after at least 190 tribespeople were killed in Nagpur during protests for reservation. The quota was never challenged in court.

In 2016, after the rape and murder of a 14-year-old Maratha girl, tens of thousands of Maratha activists hit the streets of major cities in Maharashtra, holding silent marches that swamped Mumbai, Pune, Thane, Nashik, Nagpur and other big towns. They demanded quotas and the scrapping of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act because three Dalit men were convicted for the crime.

In 2018, the state government reconstituted MSBCC and asked it to submit a report on the Marathas. The report found that 6.77% of the community entered college, 37% were below the poverty line and 71% were landless or marginal farmers. But the community has been politically dominant, with 11 of the 18 chief ministers being Marathas.