Supreme Court's message to dominant castes seeking quotas

The Maharashtra government’s efforts to reserve college seats and government jobs for the Maratha community have come to a sorry end. A Constitution Bench of the Supreme Court of India in Dr Jaishri Laxmanrao Patil vs The Chief Minister, Maharashtra, has unanimously held that the 2018 Maharashtra law granting a 16 per cent quota for Marathas in educational institutions and government jobs is unconstitutional.

In striking down the 2018 Act, the court has relied on the well established jurisprudence around Article 15(4) and 16(4) of the Constitution. The court found no credible evidence to suggest that the Maratha community is in any way socially or educationally backward and rejected “studies” which claimed otherwise. Rather, the court took the view that the Maratha community was a “socially advanced and prestigious caste”.

Read | Supreme Court quashes Maratha reservation in education, jobs

Another ground for striking down the reservation was that it resulted in more than 50 per cent reservation. The Supreme Court has held that the limit of 50 per cent on reservations in jobs and seats laid down in the Indra Sawhney case, while not absolutely sacrosanct, was justified since it strikes a constitutional balance between equality of opportunity and the needs of equity. While it may be breached in certain exceptional situations as laid down in Indra Sawhney vs Union of India (1994), the SC noted that nothing on the facts of the present case showed why it should be breached for Marathas who were in no way outside the mainstream of the society or so severely deprived of opportunities that such a move was necessary.

Even apart from the validity of the 2018 Act, the court was called upon to decide whether the Indra Sawhney case itself was decided correctly in 1994. Specifically, lawyers arguing for the 2018 Act contended that the 50 per cent limit was arbitrary, not founded on the constitutional text and impeded social mobility. The court rejected these arguments as well countering instead that the 50 per cent struck a necessary balance and “[t]o change the 50 per cent limit is to have a society which is not founded on equality but based on caste rule.”

The SC striking down Maratha reservations has profound implications for not just other similar caste groups, but also on the so-called reservations for “Economically Weaker Sections” (EWS) (currently under challenge in the court). The SC had earlier struck down reservations for the Jat community in various states across northern India and there is currently a challenge pending to the constitutional validity of the reservations for the Gujjar community in Rajasthan. In this context, just as crucial is the court’s finding (by a majority of 3 to 2) that following the 102nd amendment to the Constitution, states will no longer be allowed to designate which castes and communities are “socially and economically backward” for the purposes of reservations.

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Reservations were certainly not meant to benefit dominant groups such as the Marathas who not only enjoy numerical strength, but have also controlled land, resources and political power. To this extent, the court’s reasoning is unexceptionable and it has rightly rejected as flawed the basis on which the Maharashtra government and the Bombay High Court concluded that the Maratha community was “socially and educationally backward”.

Yet, one does detect a certain note of judicial conservatism in the SC’s upholding of the 50 per cent limit to reservations as laid in the Indra Sawhney case. I have argued elsewhere that the 50 per cent limit unnecessarily limits the transformative power of reservations to reduce inequality and promote opportunity. In the absence of a proper caste census, one could even argue that a 50 per cent limit on reservations inhibits members of disenfranchised and oppressed groups from rightful opportunities. While the court never says so explicitly, it seems to implicitly accept the flawed idea that “merit” and “equality” are somehow opposing values.

That said, this elevation of the limit of 50 per cent to a constitutional value (as opposed to merely a judicial test) has serious implications for the validity of the provisions of the 103rd Amendment. In specific, those parts of the amendment that allow the states or Central governments to breach the 50 per cent limit in granting EWS reservations. Following the principle in Kesavananda Bharati vs State of Kerala (1974) that Parliament cannot even amend the Constitution to go against core constitutional values (‘the basic structure’) then the 103rd amendment which allows for the breaching of the 50 per cent limit now stands on immediately weaker footing.

It remains to be seen whether the court extends this line of reasoning to the EWS reservations as well when the case comes up for hearing, but as things stand, dominant communities which have used their political muscle to seek and corner reservations at the state and central level will find it much, much harder to do so in the future as a result of this judgment.