When courts fall to populist pressures

When courts fall to populist pressures

Maratha Kranti Morcha protesters take part in a rally during their Maharashtra bandh, called to press for reservations in jobs and education, at Patan in Satara. PTI File Photo

The Bombay High Court’s ruling upholding reservation for the Marathas in education and jobs is based on unconvincing grounds and arguments of dubious legal merit. The court has held the additional quantum of reservation, brought about by a special legislation in the state assembly last year, as valid and legitimate, though it has slashed it from 16% to 12-13 %. The judgement will take total reservations in the state to 64-65 %, much above the 50% mandated by the Supreme Court in the 1992 Indira Sawhney judgement. The state government had acted under pressure, after strident agitations by the Maratha community, with an eye on political and electoral benefit, which it reaped in the Lok Sabha polls and may gain again in the coming assembly polls. But the very idea of reservations has been diluted and taken a beating. The high court’s reasoning is inconsistent with the rulings of other high courts in similar cases and unlikely to pass muster with the Supreme Court where it is sure to be challenged. 

The constitutional aim of reservations is to give support to socially and educationally disadvantaged communities. The Marathas are a socially, politically and economically dominant community and the court’s acceptance of its backward status is bound to be questioned. The law created a special group of socially and educationally backward class, separate from the OBCs, and placed the Marathas in that group. The creation of such a special category is a political escape route. There are two types of OBCs now, and this is of uncertain legal merit. The court has also said that there are ‘’exceptional circumstances and an extraordinary situation’’ that warrant the breaching of the 50% limit. These circumstances and situation are basically political, created by the agitation by the community, and that should not force the State to change fundamental policies inherent in the Constitution. The Supreme Court had said that taking reservations above the 50% limit would violate the right to equality and opportunity granted by the Constitution. These are among the most important fundamental rights and it is doubtful whether any special circumstance can be invoked to deny them to the citizens.

Other communities like the Patidars of Gujarat, the Gujjars of Rajasthan and the Jats of Haryana, whose claim to backwardness is as weak as that of the Marathas, but who have also been agitating for reservations, will now be encouraged to step up their agitation. The respective state governments will be under pressure to concede the demands the Maharashtra way. It is true that the quota demands have arisen from the lack of opportunities. But the solution is to increase the overall opportunities, not to ration out the shrinking pie among stronger and more voluble groups.

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