Events
& Issues
New Delhi, 20 May 2021
Identification of SEBC
MARATHA QUOTA FALLOUT
By Dr S.Saraswathi
(Former Director,
ICSSR, New Delhi)
Even the pandemic second wave tsunami cannot
extinguish the heat produced by a week-old
decision oftheSupreme Court declaring as unconstitutionalthe quotafor Maratha
community granted in the Act on Reservation for Socially and Educationally
Backward Classes (SEBC) in Maharashtra.Itheldthatit violated the right to
equality.The SC also confersexclusivepower
tothe Union Government to identify and declare SEBCs.
The apexcourt considers 50% upper limit for
reservation as inviolable. Therefore, it requires proof of “exceptional
circumstances” forexceeding thelimit to add to the list of SEBCs.The Union
Government has moved a review petition on this decision holding thatStates are
equal partners in thisendeavour of identifyingSEBCs.
Clearly, an issue between the Executive and
Judiciary, between Governments and the Supreme
Court and not between the Centre and States or between political
parties. Reservation Policyis a complicated matter and isgrowingin complexities
as time passes with more and more demands and less and less satisfaction. Our aim
should be to make it simpler.
The question of validity of the law of 69%
reservation prevailing in Tamil Nadu which is pending in the SC would be
takenup after the decision of the Constitution Bench on the Maratha quota.
SC’s objection isboth for recognition ofMarathas
as a SEBC and for exceeding the quantum of
quota beyond 50% ceiling laid down in 1992 by the famous MandalJudgement
of the SC. By allowing separate quota
for Marathas, Articles 14 on the right to equality, and Article 21 on due processoflaw were violated as per the
verdict. The over-all limit of 50% of total places for admission in educational
institutions and government jobs under all categories of backwardness had
been in force for nearly 30 years and there were no “extraordinary
circumstances”brought out by the Government of Maharashtra to justify exception
to accommodate Marathas.
Three out of five judges who subscribed to
this view also held that the Central government alone “to the exclusion of all other authorities,
is empowered to identify SEBCs and include themin the list to be published
under Article 342A(1)”. It will be a central list with names classified by
State/UT. Will it replace existing State lists used for state-level
opportunities? It is not clear, but seemsit will not.
The other two judges on the Bench (one of
whom was the presiding judge) held that Article 342A does not in any manner
deprive States of their power, jurisdiction and competence to identify and
declare SEBCs.
All
the five judges agreed on the
validity of 102nd Amendment
of the Constitution thatgives constitutional statusto the National Commission
on BWC and on the principle of 50% ceiling
ontotal reservation fixed in 1992.
Between 2014
and 2021, Maratha quota was hanging in suspense, but not as an isolated
case. Jats in Haryana, Rajasthan and
many other States, Pattidars in Gujarat, Gujjars in Rajasthan, Kapus in Andhra
Pradesh, to cite a few examples, are also playing Reservation Politics.
Recall, the Maratha Reservation Bill was
first adopted in Maharashtra in 2014. the Bombay High Court in an interim order
in November 2014 held prima facie
that the 16% quota for Maratha community in education and employment was
unconstitutional as it could not be
considered backward. Yet, the Maharashtra Governmentpassed aBill in the State Assembly
providing for Maratha quota up to 16% and 5% Muslim quota.Its validity was
upheld by the Bombay High Court. Interesting is the fact that the Government
did not proceed with Muslim reservation,
which was approved by the court in the same judgement.
The question of Maratha quota dividing people
continued for a long time. Bombay High Court
in 2019 reduced the quota from 16% to 12% in education and 13% in jobs.With this, total
reservation inMaharashtra stood at 70% including 10% for economically weaker
sections – a straight defiance of the ceiling of 50% for reservation.
Denial ofbackward status to Marathas by the
SC isa big blow to the State Government as much as to concerned Maratha
community. The refusal to reconsider 50% cap on reservation is a bigger blow
felt in many States that has gone beyond50% by using “exceptional circumstances” clause. Maratha quota fall-out is national.
Another cause for serious worry for champions
of Backward Classes in Tamil Nadu and
other States in southern Indiais centralisationof the list which virtually
reducesStates’ power in “backward
politics”.
There is also a genuine difficulty in
identifying SEBC out of a conglomeration
of hundreds of castes which have many more hundreds of sub-sects and sub-castes
and divisions on regional, sub-regional, and linguistic basis. To understand
theintricaciesof the caste systemis a challenge
to even sociologists and anthropologists. Even castesbearing same name
may not be equal in social status.
Backward Class Commissions constituted bythe Tamil
Nadu Government used to compile data
on the number of government posts held
by different castes grade by grade to determine their representation in
government -- a laborious work that can
hardly provide any accurate or useful
picture. First of all, there’s no rigid social demarcation between castes as
inter-caste marriages are very common. Economic status determines social status
intra-caste as well as inter-caste as much as ritual status. To
continue caste criterion for
identifying backward classes is no longer tenable.
MandalCommissionrecommended11indicatorsto
identify socially and educationally
backward classes grouped as social, educational, and economic.Considered
as socially backward by others, dependence on manuallabourfor livelihood,early
marriage, lack of schooling and heavy drop-out, proportion of matriculates, size
of family assets, type of house, availability
of drinking water, taking consumption
loan are major criteria ofbackwardness.
It is on the face of it difficult to identify
backward classes without caste-wise dataon these factors. To collect themas part of census
exercise is an unworthy exercise. Our object should be universal education,
basic minimum wage for all work, housing for all, water in every house and so
on.Uplifting a few individuals cannot
remove social and educational backwardness of a whole community. To counter
this, sub-categorisationof OBCis attempted which will only lead to more complications.
While Tamil Nadu was the only State having
over 50% reservationbefore the ceiling was fixed in 1992, there were several
aspirants to follow its example. The final decision on the Maratha quota is going to be extremely significant.
Crucial is the point that the Union
Government wants States to have a say in identifying SEBCs. The
Centre has also asked for an open court hearing on its review petition and to
stay operation of its judgement denuding States of the power to identify SEBCs.
For the Union Government,it is impossible to prepare listsfor all States even
in collaboration with them.
In fact, it is a futile exercise whichwill promote
race for recognition of backwardness between castes and intensify caste
politics not for the benefit of communities but for some imaginary benefits to political
players.----INFA
(Copyright, India
News & Feature Alliance)
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