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Editor's Note: This article is a Part II of the series on the topic of Maratha Morcha. Read the Part I here.

The months that have followed the Part I of this series, the demand for Maratha reservation has picked up a notch. With an ad-hoc proclaiming of Maharashtra bandh at every possible interval, inviting vandalism and violence, the once peaceful agitation (Mook Morcha) does not feel peaceful anymore. Although this might be attributed to the polls next year, it throws up interesting questions on how the government ostensibly plans to manoeuver its way out of the inevitable judicial intervention.

The protest forms a part of long list of reservation demands in the country and is destined to follow the same trajectory, either fizzling out or being brushed away by the courts. Like the Patidar reservation case being quashed by the Gujarat High Court in 2016[1], or the SC negating the reservation for Jats in the Ram Prasad vs Union of India case, 2015[2], the Maratha reservation demand is most likely to follow the same path.

The driving force behind most of these communities to demand reservation is deep-rooted in vote bank politics and lack of economic opportunities. The dearth of jobs and dwindling incomes have often been used as a veneer for provoking people’s sectarian loyalties, or in this case particularly, caste. With the general elections and Maharashtra assembly elections coinciding next year, it seems a far too convenient time for an agitation to kick into next gear. These findings, however, continue to be unfounded, basking in the eerie power corridors, as you would expect them to be.  

The constitution of India, apart from the Scheduled Castes and Scheduled Tribes, mentions the term backward classes thrice, in articles 15, 16 and 29. These articles enable the state to empower the backward classes of citizens in fields of education, employment, etc but it does not specify who is backward. It has left the responsibility to identify and to include classes of citizens as backward to the government, or more precisely, to the Commission of Backward Classes. It is mandatory for the Government to consult the commission on matters of inclusion and exclusion of classes of citizens in the OBC list.

Not too surprisingly, the Government of Maharashtra has tried to woo the Marathas many times in the past with promises of reservation but has failed miserably. In 2004, the Congress-NCP government were unsuccessful in acquiring the commission’s report. In 2008, the Vilasrao Deshmukh government did get the report, but the report ruled against the reservation demand by a 4-2 majority. That the political class consider the public to be so vacuous, that in 10 years a community can become backward is amusing, to say the least. The Prithviraj Chavan government also took the step of granting 16% reservation but was invalidated by the courts because it did not have the commission’s backing[3].

The bill moved by the current government has been stayed by the court, as it does not have the report of the commission to back it up. The commission is likely to submit its report by the end of the year. Save a miracle, the commission is likely to come up with a negative report for the second time around. However, it might dangerously try to tread on the infamous Tamil Nadu precedent, which by its never-ending governance of free goodies and appeasement policies, has tinkered with the SC’s ruling in the Indira Sawhney vs Union of India case, 1992.

The Indira Sawhney vs Union of India was iconic in the sense that it laid down the 50% ceiling for reservations in a particular state. The then CJI held that the 50% ceiling could be breached in exceptional circumstances, in cases where the population in far-flung areas cut off from the mainstream of the society, are unable to live their life to the fullest on account of conditions peculiar to them[4]. The Tamil Nadu government has fought a protracted legal battle for decades, as it has a reservation ceiling of 69%. Before understanding what the Tamil Nadu government did, one needs to understand what the IX (ninth) schedule of the constitution is. The then PM Jawaharlal Nehru, to give effect to land reforms, enacted a constitutional amendment in the form of IX schedule which stated that any act passed by the government and inserted in the said schedule will not be questioned in a court of law. In a legislature-judicial battle that dragged out for decades, the SC in the IR Coelho vs State of Tamil Nadu 2007, held that judicial review is part of the basic structure of the constitution and thus any law such passed and inserted in the IX schedule of the constitution after April 24th, 1973 (the date of the famous Keshvananda Bharti Judgement which coined the term basic structure) will be subject to judicial scrutiny.

The then Chief Minister Late Jayalalitha had pressurized the Narasimha Rao government in 1992 to place the reservation policy of the government in the IX schedule, to purportedly escape judicial scrutiny. The abundant misuse of the schedule has been ongoing since the Indira Gandhi government. But since it was placed much after the Keshvananda Bharti judgement, it did invite judicial scrutiny. The Tamil Nadu government was able to defend its stand on historical grounds and stating that the population of the SCs/STs according to the 1991 census is 88% and therefore mathematically and proportionately it would be fair to have a higher reservation percentage. That the quashing of the policy would go against the basic tenets of the constitution was also one of their main arguments[5].

Digressing and coming back to Maharashtra, the Fadnavis government has a mountain to climb.  Even the first hurdle of acquiring a positive report of the commission seems difficult to conquer, which would be submitting its report in late 2018. Even if that is done, the Maharashtra government would have to give a proposal to the Union Government to amend the constitution to give effect to the new reservation policy (State assemblies cannot amend the constitution). By some hand of God, if that bill becomes an act before the elections next year (which seems fairly easy considering the productivity of the parliament in recent sessions), it is going to be stayed by the courts for exceeding the 50% ceiling. It could very well be placed in the IX schedule of the constitution, thus validating the remarks made by legal expert Rajeev Dhawan describing the IX schedule as a constitutional dustbin[6].

The Marathas by no means form the “exceptional circumstances” that was so stated by the then CJI in the IR Coelho case. (Read Part I for the 'why'). The understanding that the more outraged you are, the more justified it is for you to indulge in violent activities is alarming and unacceptable. Judging by the life cycle of these protests, the next one would most likely be witnessed in 2023-2024 just before the next election cycle. Until then, here’s to a series of bandhs, loot, violence and wasting taxpayer’s money on securing the backward tag for the next category of citizens. Another one cannot be much far away.

 

References

[1]  Gujarat High Court scraps 10% EBC quota intended to appease the Patels. (2016. August 4). India Today. Retrieved from "Gujarat High Court scraps 10% EBC quota intended to appease the Patels"

[2] HC strikes down Haryana’s 10% quota for Jats. (2016, May 27). Hindustan Times. Retrieved from https://www.hindustantimes.com/delhi-news/hc-strikes-down-haryana-s-10-quota-for-jats/story-gFWuGlxgrbiGMIQdGBfm1K.html

[3] Gadgil, M. (2014, June 25). Maharashtra govt clears reservation for Marathas, Muslims. Livemint. Retrieved from https://www.livemint.com/Politics/1RomndWQy1wh8iH0dsBMiI/Maharashtra-govt-approves-proposal-to-give-reservation-to-Ma.html

[4]  Prasad, S. (2017, December 5). States challenging SC's 50% reservation ceiling will turn the Ninth Schedule into a 'constitutional dustbin'. Firstpost. Retrieved from https://www.firstpost.com/politics/states-using-ninth-schedule-to-challenge-scs-50-reservation-ceiling-will-turn-it-into-a-constitutional-dustbin-4242785.html

[5] Prasad, S. (2017, December 5). States challenging SC's 50% reservation ceiling will turn the Ninth Schedule into a 'constitutional dustbin'. Firstpost. Retrieved from https://www.firstpost.com/politics/states-using-ninth-schedule-to-challenge-scs-50-reservation-ceiling-will-turn-it-into-a-constitutional-dustbin-4242785.html

[6] Apex Court approves Tamil Nadu quota law. IAS100. Retrieved from http://www.ias100.in/daily-dose-Apex-Court-approves-Tamil-Nadu-quota-law-128.html

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Written By Abhijeet Deshmukh

B.A Economics, aspiring civil servant, Young Bhartiya Core Team Member.

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