Given the precedence of past legislations providing reservations by different states, the decision by the Maharashtra government after passing the law, is likely to be challenged before the court.
Giving in to the demands of the Maratha protesters, the Devendra Fadnavis-led Maharashtra government has paved the way for providing quota in government jobs and educational institutions. While the proposal has been cleared by the cabinet, a legislation for the same is yet to be passed in the state assembly. Given the precedence of past legislations providing reservations by different states, the decision by the Maharashtra government after passing the law, is likely to be challenged before the court.
Even though the cabinet has accepted the decision, a legislation in this regard may only be adopted in the Budget Session of the Assembly in March next year, The Indian Express reported. Even if the Fadnavis government wished to bring a law, it will be a long drawn process. The two-week Winter Session of the Assembly begins on Monday and does not provide the time required for a debate or thorough discussion in the assembly.
Meanwhile, the Bombay High Court will hear a petition demanding Maratha reservation on November 21. The Court has also asked the state govt to file a response with the state backward commission report.
The decision by Devendra Fadnavis government comes days after the State Backward Class Commission submitted its report to the BJP government stating that the community is socially, economically and educationally backward. The Maharashtra government on Sunday cleared reservation for Marathas under a new, independent category called Socially and Educationally Backward Class (SEBC).
On accepting the report, Chief Minister Fadnavis said that the state cabinet has accepted the backward class commission’s report for Maratha reservation and the quantum of reservation will be fixed by the cabinet sub-committee assigned to chalk out technical aspects of the bill, which will be tabled in the coming session.
The Backward Class Commission had been asked to prepare a report on social and economic backwardness of the Maratha community after pressure on the government increased. Marathas have been demanding 16 percent quota in in jobs and educational institutes.
Meanwhile, the decision to classify Marathas as a separate category is seen an attempt to avoid legal and constitutional hurdles as well as a direct conflict between Marathas and OBCs. CM Fadnavis said that Marathas will be considered as a separate category and there is no question of any community losing its share of quota. The OBC’s have asserted that their quota should remain intact.
The politically dominant Maratha community, which constitutes over 30 per cent of the state’s population, has been demanding quota for a long time and its agitation for the same in July and August this year had taken a violent turn.
In 2014, the then ruling Congress-NCP government had granted 16 per cent reservation for the Marathas and five per cent quota for the Muslim community just before the elections. However, the reservation was stayed by the Bombay High Court.
Reportedly, the commission’s report has said that the community is a ‘socially and educationally backward class of citizens’ with minuscule representation in government and semi-government services. A socially and educationally backward class can be extended benefits of reservation under Articles 15(4) and 16(4) of the Constitution, and in view of such extra-ordinary and exceptional condition, the state government is liable to take action, the report has said, PTI reported.
CM also said that as per the opinion of the Advocate General, the state does not need the permission of the central government for granting quota.
Mentioning the Tamil Nadu reservation case, where the quota has crossed 50 per cent mark, Fadnavis said it has not been struck down and his government is confident of extending reservation to Marathas. According to the Supreme Court, the total reservation for SC/ST and other backward classes or special categories should not exceed 50 per cent. The ruling assumes significance in the context of Tamil Nadu where a quota of 69 per cent quota in employment and education has been provided. However, the issue is still pending adjudication before a three-judge Bench of the apex court.
At present, the total reservation in Maharashtra is 52 per cent; 13 per cent for Scheduled Castes, 7 per cent for Scheduled Tribes, 19 per cent for Other Backward Classes, 2 per cent for Special Backward Classes, 3 per cent for Vimukta Jati, 2.5 per cent for Nomadic Tribe-B, 3.5 per cent for Nomadic Tribe-C (Dhangar) and 2 per cent for Nomadic Tribe-D (Vanjari), The Indian Express reported.
However, implementing a reservation policy has not been that easy for state governments even after passing a law.
After the February 2016 violent protests in Haryana by the Jat community demanding quota in jobs and educational institutions which virtually brought Haryana to a halt, the Haryana Assembly had unanimously passed The Haryana Backward Classes (reservation in services and admission in educational institutions) Bill 2016 in March, 2016.
However, in May 2016, a division bench of the Punjab and Haryana High Court had stayed its implementation after hearing a public interest litigation which said that reservation has reached around 70 per cent. As per the Indira Sawhney judgement by the apex court, the quota limit could not exceed 50 per cent.
In March 2018, the Supreme Court ordered status quo on the operation of the September 2017 High Court verdict, which upheld the constitutional validity of the law providing ten percent reservation to Jats and five other communities in Haryana, till further orders. In April again, the apex court maintained the status quo.
Similarly, in Rajasthan, the Supreme Court had said quota in jobs and education in the state has exceeded the 50 per cent cap and it cannot be stretched further after the Vasundhara Raje government had promised 5 per cent quota to Gujjars following agitation. The government was planning to expand the reservation for OBCs from 21 per cent to 26 per cent and give 5 per cent reservation to Gujjars and other castes.