‘Social backwardness is not an objectively identifiable feature’

The Maratha quota agitation is on the boil once again, led by activist Manoj Jarange-Patil. As in 2023, Jarange-Patil is threatening to hold the Devendra Fadnavis-led Mahayuti government in a vice-like grip by ensconcing himself in Mumbai from where he refuses to budge.

In an exclusive interview with ‘The Perfect Voice’, former Maharashtra Advocate General and noted lawyer Shreehari Aney speaks to the paper’s Executive Editor, Shoumojit Banerjee, on the legal tangles plaguing the Maratha quota issue.

Q: The demand for Maratha reservations has been politically explosive. From a strictly legal standpoint, where does the problem lie?

As recently as the 2021 judgement, the Supreme Court’s observations indicate doubt about whether   Marathas at all qualify for Backward Class reservation. While considering the aspect of eligibility for reservation under Articles 15 which concerns the Right to Education and Article 16 which concerns the right to employment in government jobs, the Supreme Court relies on a long line of judgments where they have held that only those classes identified as backward based on objective empirical data are alone entitled to benefits of reservation.

Only two types of backward classes who qualify for reservations under the constitution are Scheduled Castes (SCs) and Scheduled Tribes (STs). The constitution also uses the term ‘socially and educationally backward’ and ‘economically backward’, but it does not define these. To cure this vagueness, the Supreme Court pronounced judgments requiring statistical survey backed by empirical data to establish backwardness. These judgments were case-specific, pronounced to address specific fact-situations in specific cases. They were neither comprehensive nor cohesive to cover or apply to all cases where there were demands for recognition of backwardness. And therein lies the rub: the absence of consistent standards.

For instance, in case of comparing inter-state backwardness, a person who qualifies as socially or economically backward in a relatively affluent state like Maharashtra will be quite different from someone tagged similarly in a much poorer state, say Jharkhand. Likewise, there is similar problem intra-state backwardness as well. The backwardness of a person from western Maharashtra is quite different from and not comparable to that of someone from Vidarbha or Marathwada. We do not really have any kind of normative measure of nationwide applicability.

Q: That raises the central question of how should ‘social and educational backwardness’ be defined for groups other than SCs and STs?

The real difficulty is that our Constitution permits reservations for only those communities that can be shown to be socially and educationally backward. Now, Marathas cannot be fitted into Scheduled Castes or Scheduled Tribes - that much is clear. The only remaining category for reservation is the OBC category. But the moment you try to bring Marathas under OBC, you face stiff opposition because other communities who are already identified for OBC reservation see Marathas as encroachers eating into their share of the OBC pie.

Earlier, except for the Narayan Rane and Justice Shukre committees, every other Commission or Committee appointed to consider whether Marathas were a backward class gave an unfavourable report, holding that the Marathas were not eligible for reservation as they could not be considered backward. The 2024 Act passed by the Maharashtra legislature has tried to overcome this by introducing an additional 10 percent reservation for Marathas, over and above the OBC reservation. This is now challenged in the Bombay High Court.

To be fair, the problem of identification of Backward class was attempted to be tackled through 104th, 105th and 106th Constitution amendments carried out between 2019 to 2023.  These created National Commissions for Scheduled Caste, Scheduled Tribes and OBCs respectively. But all these authorities were placed under the control of the Central government – a move vigorously objected to by the States as being violative of the Federal principle, claiming that at least the question relating to OBCs should not be left to the Central government.  This was further complicated by debates over whether the Centre or the States had the authority to decide backwardness independently. Maharashtra, for its part, tried to push ahead. It created a special 10 percent quota exclusively for Marathas in education and employment. The Marathas argued, quite rightly, that one cannot dismiss their claim merely by saying they were (or still constitute) the ‘ruling class’ of the State. The difficulty, however, remains that ‘social backwardness’ is not an objectively identifiable feature and no pan-India norms have been framed which can process the identification of OBC in different states across the country.

Q: Apart from the problem of identifying backwardness, the 50 percent ceiling on reservations remains another major obstacle. What is your view on that?

A fixed amount of reservation is given to the SC and ST communities based on their numbers as a percentage of the entire country’s population. But this cannot apply to OBCs whose numbers depend on the size of each of their constituent classes. There is no data of how many communities in each state are claiming to belong to OBC. There is no method of identification of OBC in every state throughout the country, much less determine their percentage claim for quota based on their numerical strength against the State’s total population.  The problem compounded because there has been no National Census since 2011.

Secondly, an argument often raised by government in the Courts is: what is so sacrosanct about the 51 percent cap? Why can’t it be breached? The answer lies in the fact that doing so would encroach upon the Open category, which is already shrinking with every new round of quotas. Reservation was originally conceived as an exception to equality, but over time it has been reinterpreted as a right to equality. Can the OBC ceiling be exceeded in favour of Marathas? No, because it inevitably breaches the 51 percent limit. This imbalance cannot be resolved unless the opportunities for education and employment in the country grow substantially. At present, opportunities are not expanding fast enough to meet rising demographic demands. That is why a comprehensive census to provide an empirical basis for determining backwardness is essential. But it is doubtful if the government has the desire or political will to commission such a wide-ranging data gathering census exercise since it could reveal uncomfortable truths about education, rural deprivation and the lack of opportunity across vast swathes of India.

Q: Some have argued that constitutional amendments could provide a way out. Is that realistic?

Such Constitutional amendment can raise the 50 percent ceiling. But the amendment needs to be passed by both houses of Parliament and ratified by the legislatures of half the States. After all, New Delhi has the same party that rules Maharashtra. So, politically, it can be attempted. However, the road to a constitutional amendment is long and fraught. The crux is whether the Marathas, as a class, qualify for a quota; without that determination, even a constitutional amendment would be futile.

Q: So, what is the long-term solution?

You cannot give reservations above the 51 percent cap without creating more trouble for the Open category. If government says that this can be done in Maharashtra, it will have far-reaching implications across the country. The question that immediately arises is why not in Gujarat, Maharashtra, Bihar, U.P., Punjab and Himachal Pradesh. In West Bengal, Orissa, Assam, Tamil Nadu and Karnataka, where similar demands exist? Without a fool-proof, constitutionally valid legislation, the issue will remain unresolved.

In law, the only real way forward is to determine, through proper data, whether the Marathas are genuinely socially and educationally backward. The solutions, whether a constitutional amendment or an adjustment of the percentage cap, are necessary, but will follow. The problem cannot be treated with a band-aid, for a severe ailment needs specialized doctors to cure.

The truth underlying the problem must be recognised. Whenever claims for such reservation arise, it is largely because successive governments have failed to create enough jobs and expand educational opportunities. Over time, the perception has grown that one has a better chance of securing employment or of affordable quality education if one is ‘reserved.’ This was never the intention of the Constitution. The mainstream clamour today stems from the inability of both Centre and states to generate opportunities in education and employment, pushing people to believe that reservation is the only solution. That is where the real solution lies.