Author: Nickkita Shome
Amity University, Kolkata
Marathas are a community that formulate 32 percent of the population in Maharashtra. Historically, they have been suggested as the warrior caste or land holder caste. However now, they are dependent upon agriculture. In 2018, there were a lot of distress and disputes in the agricultural sector and because of that the many agricultural lands were divided. And as a result of which, the quality of soil and hence the quality of crops, got deteriorated. Due to this entire incident, there were a lot of conflicts within the community which they spilled over in the form of protests. After that, they demanded for quotas and a special class which should be made for them. Thus, this is the entire reason for bringing in the Maratha quota law.
On July 9, 2014, the state of Maharashtra promulgated an ordinance granting 16 percent reservation to the Maratha community. However, now the Bombay high court stayed this ordinance. Still a challenge to the stay appeared in the Supreme Court but the Supreme Court also dismissed this interim order on 18th December, 2014. The name of the act currently is Socially and Educationally Backward Classes Act of 2018.
THE PROCESS INVOLVED IN PASSING THE MARATHA QUOTA LAW
Maharashtra State Backward Class Commission was made by the State Government in the year 2017 and it was chaired by Justice Gaikwad. He gave some evidence and data to show that the Maratha community are socially and educationally backward and hence, they should be given constitutional protection or reservation for them to prosper in the future. Consequently, upon the commission’s recommendation, the Maharashtrian Government passed The Socially and Educationally Backward Classes Act Of 2018 on November 2018.
THE LOOPHOLES OF THE LAW
The Gaikwad Commission said that the Maratha community should be given 12 percent reservation for educational purposes and 13 percent for public services right. However, the constitutional validity of the act was challenged before the Bombay High Court and it said that it exceeded the limit of 50 percent ceiling limit according to certain pleas. And thus, finally the Socially and Educationally Backward Class Act Of 2018, mentioned to provide 16 percent reservation. This plea was done as in the Indra Sawhney & Others v. Union of India, 1992, it was explicitly said by the Supreme Court that the reservation limit should not exceed 50 but it exceeded 50 limit and that is why it was challenged. Justice acquired commission report said to be lacking any sort of scientific evidence and quantifiable or adequate data. It also did not provide the evidence which showed that the Marathas are a backward community or they are an oppressed community. It even created a special class of reservation for Marathas outside the OBC class.
The Maratha Community having a special class was an infiltration to the Article 14, 16 and 19 of the Indian constitution and it was challenging many articles. It was one of the major issues with this particular law or Act. It also encroached on judicial power by directly overruling the High Court’s 2014 and 2016 orders. The powers of the judiciary over did them and it was also passed without complying with the procedural requirements mandated by the 102nd Constitution Amendment Act Of 2018 which explicitly made it clear that presidential consultation with the governor should occur before classifying any community. As socially and educationally backward which did not happen so these were the challenges to the or the issue to the Maratha Quota Law which were put forward in the Maratha Reservation Case.
ADDRESSING THE LOOPHOLES
The Maharashtra Government, with respect to the above issues, say in its defense that there were extraordinary conditions such as rise in the cases of suicide because of rising indebtedness. It also mentioned that the provisions of the Act of 2018 , did not override or it did not actually infiltrate in the judiciary process but it just removed the provision on the basis of which the 2014 act was not accepted by the court. Thus, on 27th June 2019, the Bombay High Court upheld the constitutional validity of the act and it said that the State Government has all the powers in its hand to exceed the limit of 50 percent for reservation.
It also said that the report which Justice Gaikwad Committee produced was backed with scientific evidence and adequate data to show that there was there were extraordinary conditions which were allowing for such an Act to be passed and the State Government did not encroach upon the judicial powers. They even declared that the act meets the Test of Reasonable Classification under Article 14 of the constitution. Thus, it finally that means that the Marathas were identified as a separate class and because of that they are not creating any problem for the other backward classes. It suggested that Article 15(4) and Article 16(4) basically deal with equality in the sense that the Article 14 would not prohibit the State or the Central Government in order to make special provisions for such communities which are backward in nature. Therefore, the court said that there was no sort of clash between these two acts and between these two provisions.
THE LAW AND THE 102ND AMENDMENT
Recently, the Supreme Court has actually talked about listening to all those appeals in a hybrid manner but the Maratha community is extremely saddened and very irritated with how the State Government made the act come into being. They say if proper judicial process was followed and due process of law was followed, it wouldn’t have resulted into the present scenario.
In Article 342 A, there were certain committees or commissions which were formulated or framed in the 1950s and 70s by the Kaka Kalelkar Commission and the Bundle Committee in order to provide welfare measures and to identify those who have been at the end of the barrel and did not receive any proper or equal support when it came to education and social acceptance. But the 123rd Constitution Amendment Bill, 2017 was introduced in the parliament to safeguard the interest of the backward classes more effectively. Prior to this, it was stated in the Indra Sawhney & Others v. Union of India, 1992 by the Supreme Court that – we need to create a commission for the backward classes in order to identify which classes actually are backward classes. For going deep into the topic, The National Commission for Backward Class was created in the year 1993 and it was a statutory body under the ministry of social justice.
However, considering this bill, it wanted to make NCBC not a statutory but give it a constitutional address that means to make it a constitutional body. So, basically the 123rd Amendment Bill talked about giving constitutional protection a constitutional validity to the body and also have a proper welfare mechanism right so it of course talked about. The 123rd Constitution Amendment Bill of 2017, got an acceptance in the year 2018 and then it came into being as 102nd Amendment Act of 2018. This Act provided for national commission of backward class. NCBC was created with the authority to examine complaints and welfare measures regarding socially and educationally backward classes.
Article 340 deals with the need to identify those socially and educationally backward classes which are in dire need of support when it comes to proving them to be equal with the rest of the citizens’ right and hence the 102nd Constitutional Amendment Act, inserted Article 338(b) and 342(a). Article 342A states that the president should consult the governor of a state if there needs to be a classification of certain category of persons to be socially or educationally backward but to amend the list of those categories there needs to be a law that should be passed by the parliament keeping in mind all rights
The way forward is first following the due process of law. But, however, due process of law does not only take care of the consequential nature of a law but also, the procedural nature. It is consequential in the sense that if certain law makes a person to get deprived of its right to life and liberty then that law is fair and it’s just for all the citizens. Therefore, first we need to follow the due process of law with respect to the constitutional provisions.
Merit should also be taken care of along with reservation because merit is everything. When we talk about getting or growing equal in the sense that certain class of the society, they have been deprived of the rights but merit should not be compromised. They should be given equal opportunity but they should not be given equal opportunity at the cost of deserving and meritorious classes and also curbing political ambitions. Marathas play an extremely influential role in the political system of Maharashtra but that should not actually result inter- regionalism. The sense of the soil theory which says that the people who belong to certain region should get all the rights available to them at the cost of those people who are alien to the land should be applied and thus, if we just keep on burning up the regional issues, then sons of the soil theory will go for a longer period of time. Therefore, these are the certain way forwards we can think.
 Socially and Educationally Backward Classes Act, 2018
 Maharashtra State Commission for Backward Classes Act, 2005.
  Indra Sawhney & Others v. Union of India, 1992, AIR 1993 SC 477
 Indra Sawhney & Others v. Union of India, 1992, AIR 1993 SC 477
, Maratha quota law passed by Maharashtra is constitutional, Centre tells SC, SCROLL ( Sep. 24, 2021, 06: 45 PM),
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