Under Prime Minister Narendra Modi, the Bharatiya Janata Party (BJP), once considered to be just a party of upper caste Hindus, is beginning to expand its social base. And a party that has consistently criticised the Indian National Congress for its so-called appeasement policies including sub-quotas for minorities within Other Backward Classes (OBC) and reservation for OBC Muslims is no longer hesitant in extending reservation to newer castes.
In keeping with this line, one has seen it introduce reservation for politically dominant castes such as the Gujjars in Rajasthan, Patidars in Gujarat and the Marathas in Maharashtra. The BJP government in Uttar Pradesh has included 17 OBC castes in the Scheduled Castes list. Even the judiciary that has so far been quite concerned about the ‘merit’, ‘efficiency in administration’ and interests of ‘general candidates’, has sent out mixed signals on invoking the strict scrutiny test in examining the constitutionality of a reservation policy. The Supreme Court has refused to stay the Central government’s decision to grant 10% quota in jobs and education to the economically-weaker sections and the Bombay High Court has now upheld reservation for the Maratha community.
Anyone familiar with Maharashtra will know that the Maratha community is an influential and politically dominant caste which has not faced any systematic social discrimination or exclusion. Most of the State’s Chief Ministers have been Marathas. While the Mandal Commission identified Marathas to be a ‘forward’ community, two State Backward Class Commissions, namely the Khatri Commission (1995) and Bapat Commission (2008), recommended not to include them within the OBC category. After the High Court had stayed the 16% reservation made on the basis of the recommendations of non-statutory Narayan Rane Commission (2015), the matter was referred to the M.G. Gaikwad Commission in 2017, which submitted its report in 2018. The Bill was passed and brought into force in less than two weeks.
The Mandal Commission had 11 yardsticks to determine backwardness. On certain parameters, the Gaikwad Commission did go beyond Mandal; some of the yardsticks it adopted were controversial. For example, the Commission noted that of the total farmer suicides of 13,368) 2,152 Maratha farmers had ended their lives. It ignored the fact that these were not due to backwardness but because of agrarian crises. The Commission also attached great importance to its finding that while 69% Maratha families sought medical treatment for jaundice, 9.65% sought treatment from tantriks while 0.54% left it ‘to the mercy of god’; superstition, and ‘blind vows’ were factored in as proof of backwardness though such irrational practices or beliefs are prevalent even among the higher castes as well. The Commission also found that a large number of Marathas in Mumbai are engaged in the business of dabbawallas. Acceptance of food from them shows that people do not consider them low caste. The finding of 71% Marathas owning land of less than 2.5 acres was considered a sign of backwardness but such small holdings are due to fragmentation of land as a result of inheritance laws rather than it being a sign of backwardness. The Maratha share of 19.5% in government jobs too cannot satisfy the constitutional requirement of inadequacy of representation; even the finding that Marathas constitute 30% of the State’s population is suspect as the Commission excluded Muslims, Jains, Sikhs and unreserved categories in its population count. In fact on most parameters, Marathas are on a par with other forward castes and the OBCs. Singling them out for reservation is appeasement and not justice. Moreover, the Commission had recommended 12% to 13% reservation which the BJP government enhanced to 16%. The sample size was too small and it considered just 950 urban families; it also excluded Mumbai.
After all, social and educational backwardness are but an aspect of backwardness and must therefore fall within the OBC classification. Even conceding that Marathas are backward and need reservation, they should have ideally been included within the OBC. But the High Court upheld the creation of a distinct class of socially and educationally backward class with just one caste (Marathas) included under it. The issue of Gujjar reservation was struck down in Captain Gurvinder Singh (2016) though along with Gujjars, four other castes were also given the benefit. Jat reservation, in Ram Singh (2015), was declared unconstitutional because only one caste was favoured. Maratha reservation thus borders on class legislation rather than reasonable classification. Article 14 prohibits class legislation.
Since the National Commission for Backward Classes was not consulted, the constitutionality of Maratha reservation is suspect but the High Court observed that the NBCC had in no way taken away the powers of the State commission. Similarly, the Uttar Pradesh government has ignored the National Commission for Scheduled Castes in according SC status to 17 castes.
The weakest part of the judgment is ignoring the 50% upper limit of reservation by relying on the small window of exception permitted in Indra Sawhney, i.e. the factor of remote or far flung areas and an absence from national main stream. None is available to the Marathas.
Let the BJP not deviate from its stated policy on appeasement and do justice to all including Marathas and Muslims.
Faizan Mustafa is Vice-Chancellor, NALSAR University of Law, Hyderabad. The views expressed are personal