A feeling of déjà vu prevailed at the Maharashtra Vidhan Bhavan on Tuesday when a law providing for reservation to Marathas was passed for the second time by the legislature. The earlier law enacted in 2018 was promptly struck down by the Supreme Court. It won't be surprising if Tuesday's law too meets a similar fate. This, because the Justice Shukre Commission, on the basis of whose report the new law is based, does not appear to have made out the extraordinary circumstances which warrant a breach of the 50 % cap on reservations.
The Maha Yuti coalition government led by chief minister Eknath Shinde has taken a calculated risk by granting ten per cent reservation to Marathas in matters of education and government jobs. The ten per cent clearly breaches the 50 % cap on reservation mandated by the Supreme Court in the Indra Sawhney case on November 16, 1992. However, the state government appears confident that the bill passed unanimously on Tuesday by the legislature would stand the test of legal scrutiny. Many wondered if the bill was passed only to appease Maratha activist Manoj Jarange Patil who is on an indefinite fast for the past 11 days.
A Constitution bench of the Supreme Court in Dr Jaishri Patil vs Chief Minister of Maharashtra had on May 5, 2021 had declared the 2018 law granting reservations to Marathas as ultra vires of the Constitution. The apex court noted that the 2018 Act was based on the Justice Gaikwad Commission's report. But, the latter had failed to make out that extraordinary situation existed for giving reservation to Marathas and hence the SC struck down the 2018 law.
So where is the guarantee that Tuesday's law too will not be struck down by the SC? The Shinde government is banking on the fact Bihar and Tamil Nadu have passed laws exceeding the 50% cap. Also, it feels that the the Justice Shukre Commission appointed (by the Shinde government) to ascertain the backwardness of Marathas has made out that `` distinctive circumstances" do exist to justify the 50 % ceiling. However, what these ``distinctive circumstances" are not elaborated in detail. In fact, the Shukre commission appears to have conducted its survey of Maratha backwardness in a tearing hurry.
The Commission started its work on January 23, 2024 and submitted its report in less than a month on February 16. It claims to have surveyed 28 % of the population and submitted its report in little over three weeks, which is a feat in itself.
Incidentally, the government has effectively rejected Maratha activist Manoj Jarange Patil's demand that reservation for his community be carved out of the 27% quota allocated to the OBCs. Mr Jarange Patil wanted kunbi certificates to be issued to Marathas so that they can be included in the OBC category. But, following vehement opposition from OBC leaders like senior cabinet minister Chhagan Bhujbal the government did not want to take any risk and has left the OBC quota undisturbed.
CM Shinde referring to the Justice Shukre commission, on the basis of whose report 10 per cent reservation was granted to the Marathas, said several states like Bihar and Tamil Nadu. The Shukre commission observed that "If there exist any peculiar, unique and distinctive circumstances and situations to make necessary provision, the benchmark of 50% can be exceeded..." It reasoned that the breach of 50% would stand the test of reasonableness under Article 14 of the Constitution.
The Commission has observed that Marathas form 28% of the state's population. And there are already several castes placed in the reserved category getting about 52% reservation. And hence it would be inequitable to place Marathas in the OBC category. The Commission has claimed that the backwardness of Marathas is distinct and different from other backward classes and more particularly OBCs in the sense that it is more pervasive in terms of its coverage.
The Commission hence is of the opinion that the Marathas who need to be placed in the socially and educationally backward class and in a category which is distinct from existing other backward categories.
All in all, Shinde appears to have bought peace for the moment. His reasoning appears to be that the new law will be challenged and by the time a judgement is handed down by SC, the Lok Sabha elections would have been over.
.jpg)
