Maratha quota law smart move, but legally suspect

BY Satya Prakash

Politics of reservation is again hitting headlines. The Maharashtra Assembly on Thursday unanimously passed a bill to provide for 16% reservation to Marathas in government jobs and educational institutions in the state.

The politically smart move of the Devendra Fadnavis government is, however, likely to hit legal hurdles in view of the 50% ceiling for reservation fixed by the Supreme Court.

While upholding the VP Singh government’s move to give 27% quota in public employment to Other Backward Classes (OBCs), the top court had in Indra Sawhney vs Union of India (1992)—popularly known as the Mandal case—ruled that reservation can’t exceed 50%.

A similar decision providing for 10% quota for economically backward among General Category candidates in Gujarat through an ordinance was declared unconstitutional by the state high court in August 2016.

Aimed at pacifying the agitating Patel community in Gujarat, the ordinance was declared “inappropriate and unconstitutional” by the high court, for it exceeded the 50% ceiling fixed by the top court.

The only good thing about the Maharashtra law is that the state government appears to have done some home work in terms of the State Backward Class Commission (SBCC) report, which said Marathas didn’t have adequate representation in services under the state. The SBCC recommended 16% quota for them as a socially and economically backward (SEBC) community.

This can potentially offer answers to the conditions imposed by the Supreme Court in the M Nagaraj case (2006) that talked of quantifiable data to show inadequacy of representation in services under the state as a pre-condition to give reservation.

But the problem of crossing 50% ceiling mandated by the top court still remains as the new law gives Marathas quota beyond the current reservation which is already above 50%. At present, there is 13% quota for Schedules Castes, 7% for Schedules Tribes and 32% for OBCs. Giving 16% quota to Marathas would take the total reservation in Maharastra to 68%—much beyond the 50% ceiling fixed by the top court.

The only way out could be to put the Maratha reservation law in the Ninth Schedule of the Constitution to make it immune to judicial review as is the case with Tamil Nadu where the law providing for 69% reservation in government jobs is still operational. A challenge to the Tamil Nadu law is pending in the SC.

But even if placed in the Ninth Schedule, the Maratha quota law can be challenged and it will remain legally suspect.

A nine-judge Constitution Bench headed by the then Chief Justice of India YK Sabharwal had in January 2007 ruled in IR Coelho versus State of Tamil Nadu that laws placed in the Ninth Schedule of the Constitution can be challenged as they do not enjoy a blanket protection from judicial scrutiny.

The Supreme Court had laid down a two-fold test to test the legality of a law placed in the Ninth Schedule. First, it has to be seen whether the law in question violates any fundamental right guaranteed under Part-III of the Constitution or not. If yes, it would have to be further examined whether the violation damages or destroys the basic structure of the Constitution as propounded.

It’s only if the answer to both the questions is in the affirmative, a law placed in the Ninth Schedule can be declared unconstitutional.

But Maharashtra is not the only state where reservation has exceeded the 50% ceiling. Similar laws have been passed in Rajasthan, Haryana and Telangana too have enacted laws that provide for quota beyond the 50% ceiling.

While Tamil Nadu law is already placed in the Ninth Schedule, Telangana Government wants the Centre to place its quota law in the Ninth Schedule to protect it from judicial review.

The Punjab and Haryana High Court had last year upheld the validity of Haryana law giving 10% reservation to Jats and five other communities in the state, but stayed its implementation until a commission finalised the quantum.

In case of Rajasthan, the Supreme Court had refused to stay the state’s law on reservation for OBCs but asked it to ensure that it didn’t exceed 50%.

Given the divisive nature of quota politics, all these laws are bound to be challenged and tested on touchstones of constitutional provisions and principles. The last word is yet to be heard on state quota laws. A Supreme Court verdict appears imminent.