On 5 May, a five-mem­ber bench of In­di­a’s Supreme Court, through a 3-2 ver­dict, an­nulled the reser­va­tion given to Marathas -as rights of the Back­ward, and Most back­ward class com­mu­ni­ties through the reser­va­tion pol­icy of Ma­ha­rash­tra, call­ing it un­equal. The Supreme Court or­der com­pli­ments the Union-cen­tric ap­proach of the pre­sent gov­ern­ment. Tamil na­tion­al­ist body Thamizh The­siya Periyakkam has op­posed the or­der and called it a usurpa­tion of the rights of the sons of the soil by the apex court of In­dia. The learned Pres­i­dent of the body Periyasamy Ma­niarasan traces the path of the de­mand for reser­va­tion for back­ward class com­mu­ni­ties cul­mi­nat­ing in reser­va­tion in ed­u­ca­tion and em­ploy­ment, which has now been an­nulled.

THE SUPREME COURT OF IN­DIA HAS QUASHED the So­cially and Ed­u­ca­tion­ally Back­ward Classes (SEBC) Act, 2018 of the gov­ern­ment of the state of Ma­ha­rash­tra, say­ing “peo­ple from the com­mu­nity can’t be de­clared ed­u­ca­tion­ally and so­cially-back­ward just to bring them in the re­served cat­e­gory.”

In Ma­ha­rash­tra, Marathas pop­u­la­tion is about 30%. They are the sons of the soil. They are tra­di­tional farm­ers. Farm­ers of own land and land­less form the ma­jor por­tion of the Maratha peo­ple. From the be­gin­ning, they were not en­joy­ing the reser­va­tion for their com­mu­nity. 

BJP Chief Min­is­ter De­ven­dra Fad­navis amended the So­cially and Ed­u­ca­tion­ally Back­ward Classes (SEBC) Reser­va­tion Act and added the Maratha com­mu­nity, and there­after, the Marathas ben­e­fited from the reser­va­tion. Marathas achieved this as a re­sult of their sus­tained strug­gle claim­ing this right.

The amend­ment to the SEBC Reser­va­tion Act was chal­lenged vide a case ti­tled Dr Jayshree Lak­sh­man­rao Pa­tel Vs Chief Min­is­ter of Ma­ha­rash­tra (CA 3123 of 2020). How­ever, the High Court of Ma­ha­rash­tra up­held the amend­ment.

This judge­ment of the Supreme Court has hit the back­ward class com­mu­ni­ties of other states as well.

Sub­se­quently, a five-mem­ber tri­bunal headed by Jus­tice Ashok Bhushan, and con­sist­ing of jus­tices L. Nageswara Rao, S. Ab­dul Nazeer, Hamant Gupta, and S. Ravin­dra Bhutt heard this case. On 05-05-2021 the tri­bunal de­liv­ered the judge­ment that says that the Amend­ment act that pro­vides reser­va­tion to the Marathas’ in­valid. 

This judge­ment has hit the back­ward class com­mu­ni­ties of other states as well.

It was the talk of Ma­ha­rash­tra that not of­fer­ing reser­va­tion ben­e­fits to the Marathas was a great in­jus­tice to the Marathas. Dur­ing 2016 and 2017 Maratha peo­ple con­ducted huge strug­gles for get­ting reser­va­tion ben­e­fits. As a re­sult, Jus­tice M. G. Gaik­wad Com­mit­tee con­sti­tuted by the BJP gov­ern­ment in Ma­ha­rash­tra rec­om­mended 16% reser­va­tion to the Maratha peo­ple. In the case filed against the rec­om­men­da­tion of the Gaik­wad com­mit­tee, the Supreme Court re­jected the rec­om­men­da­tion. 

Af­ter that, in the case filed against the Amend­ment Act which pro­vided reser­va­tion for the Marathas, the High Court of Ma­ha­rash­tra dur­ing June 2019 de­liv­ered a judge­ment that Marathas may be given 12% reser­va­tion in ed­u­ca­tion and 13% in em­ploy­ment. Ac­cord­ingly, the state BJP gov­ern­ment made amend­ments to the Act.

This cor­rected act has been chal­lenged in the Supreme Court and in this case only the Supreme Court has de­liv­ered such a judge­ment which ab­ro­gates the right of get­ting the ben­e­fits of reser­va­tion to Marathas. 

The Supreme Court has de­liv­ered such a judge­ment which ab­ro­gates the right of get­ting the ben­e­fits of reser­va­tion to Marathas. 

Pre­vi­ously, there was no reser­va­tion to the Back­ward class com­mu­ni­ties in the ed­u­ca­tion and em­ploy­ment of gov­ern­ment ser­vices. Un­der the pres­sure of the so­cial or­ga­ni­za­tions for so­cial jus­tice, on 1 Jan­u­ary 1979, the then Prime Min­is­ter Morarji De­sai con­sti­tuted a sec­ond Com­mis­sion for study­ing the is­sue of reser­va­tion for Back­ward Class com­mu­ni­ties un­der the head of B. P. Man­dal. The Man­dal Com­mis­sion sub­mit­ted its re­port in De­cem­ber 1980. Mean­while, the new gov­ern­ment was in power. In­dira Gandhi and her suc­ces­sor Ra­jiv Gandhi did not im­ple­ment the Man­dal Com­mis­sion’s rec­om­men­da­tions.

In the re­port, there were sev­eral rec­om­men­da­tions for the de­vel­op­ment of the back­ward com­mu­ni­ties, and one of them was to give the ben­e­fit of reser­va­tion of 27% in ed­u­ca­tion and em­ploy­ment. 

The re­port was idling un­til the Na­tional Pro­gres­sive Al­liance gov­ern­ment came to power. The Prime Min­is­ter Vish­wanath Par­tap Singh, on 13 Au­gust 1990,  27% reser­va­tion in em­ploy­ment to the back­ward class com­mu­ni­ties as per the Man­dal Com­mis­sion re­port. Con­se­quently, the BJP with­drew its sup­port to the V. P. Singh’s gov­ern­ment. The Con­gress party and the BJP jointly de­feated the NPA gov­ern­ment headed by V. P. Singh.

Some peo­ple filed cases in the Supreme Court against the im­ple­men­ta­tion of the 27% reser­va­tion to the BC as or­dered by V.P. Singh and the Supreme Court im­me­di­ately stayed the or­der from im­ple­men­ta­tion. 

In 1991, P. V. Narasimha Rao of the In­dian Na­tional Con­gress be­came the Prime Min­is­ter. He took up the is­sue which was stum­bling with­out any progress but with a fresh per­spec­tive. He in­tro­duced cer­tain com­mit­ments to the rec­om­men­da­tion of the Man­dal Com­mis­sion and is­sued or­ders on 25 Sep­tem­ber 1991, that pro­vided 10% reser­va­tion to the newly iden­ti­fied class called ‘eco­nom­i­cally back­ward” which was never of­fered the ben­e­fit of reser­va­tion apart from the 27% reser­va­tion as or­dered by the V. P. Singh as per the orig­i­nal rec­om­men­da­tion of the Man­dal Com­mis­sion. 

Against this or­der of Narasimha Rao also, cases were filed in the Supreme Court which trans­ferred the file to a 9-mem­ber con­sti­tu­tional tri­bunal. 

Arya Brah­mins and Arya Vaish­yars had as their tac­tic to keep the sta­tus of the back­ward class peo­ple who are in a huge ma­jor­ity in the same back­ward stage to re­tain their su­pe­ri­or­ity over them in In­dia. The ju­di­ciary too is al­ways un­der their con­trol.  The High Courts and Supreme Court are un­der the con­trol of Arya Brah­mins and Arya Vaishyas, specif­i­cally the Arya Brah­mins.

The Con­sti­tu­tional bench which com­prised Chief Jus­tice A.M. Venkat­acha­laiha as head and jus­tices A.M.Ah­madi, M. Ka­nia, S. Rathi­navel Pan­dian, K.Singh,  P. Sha­vant, R. Sa­hai, P. J. Reddy and one other, de­liv­ered its judge­ment on 26 No­vem­ber 1992. It up­held the im­ple­men­ta­tion of 27% reser­va­tion to the Back­ward Class, but at the same time im­posed two con­di­tions as fol­lows:

(i) The reser­va­tion will not be ap­plic­a­ble to the back­ward class peo­ple of the creamy layer and

(ii) Un­less un­der ex­tra­or­di­nary cir­cum­stances, the to­tal per­cent­age of reser­va­tion ei­ther in the cen­tral or state gov­ern­ment should not ex­ceed 50%.

How­ever, the same 9-mem­ber tri­bunal de­clared null and void the 10% reser­va­tion of­fered by the Narasimha Rao gov­ern­ment to the eco­nom­i­cally back­ward com­mu­ni­ties. It cat­e­gor­i­cally said that the Con­sti­tu­tion pro­vides for the reser­va­tion to the ed­u­ca­tion­ally and so­cially back­ward com­mu­ni­ties only and not for eco­nom­i­cally back­ward com­mu­ni­ties. 

The rea­son to ab­ro­gate the pro­vi­sion for a reser­va­tion to Marathas, given by the cur­rent 5-mem­ber bench is that there was al­ready 52% reser­va­tion to var­i­ous classes were in force, and there­fore the ad­di­tional 25% (12 + 13) reser­va­tion for Marathas would be against the judge­ment in the Man­dal case (In­dira Sa­hani case). 

The sec­ond rea­son is the 102nd con­sti­tu­tional amend­ment act en­acted by the Modi-Mo­han Bhag­wat’s gov­ern­ment dur­ing the year 2019. This 2019 con­sti­tu­tional Amend­ment act added sub-clauses 338B, 342A, 366(26c). Ar­ti­cle 338 pro­vides for the con­sti­tu­tion of a Tri­bunal for the Sched­uled Castes and its pro­ce­dural for­mal­i­ties. 

Ac­cord­ing to the presently added 9 pro­vi­sions to Ar­ti­cle 338B vide 102nd amend­ment, the Na­tional Com­mis­sion for Back­ward Classes has been made a con­sti­tu­tional body.

Its 9th sub-clause pro­vides for the con­di­tion that the Union and every State Gov­ern­ment shall con­sult the Com­mis­sion on all ma­jor pol­icy mat­ters af­fect­ing so­cially and ed­u­ca­tion­ally back­ward classes. It means that the Com­mis­sion is ef­fec­tively a bar­rier in the ex­e­cu­tion of the free will of the states to do any good to the Back­ward class peo­ple. 

The 102nd amend­ment added a new clause 342A and there are two sub-clauses. Sub-clause 342A(1) em­pow­ers the Pres­i­dent to iden­tify, pre­pare, and no­tify the list of back­ward class com­mu­ni­ties af­ter con­sult­ing the re­spec­tive state gov­ern­ments. Only the com­mu­ni­ties listed will be ben­e­fit­ted from the laws en­acted by the Union and the State gov­ern­ments. 

Sub-clause 342(2) em­pow­ers the par­lia­ment to delete a com­mu­nity that is ed­u­ca­tion­ally and so­cially back­ward from the list or add a com­mu­nity afresh to the list.

Thirdly, the 102nd amend­ment added a new sub-clause 26c in Ar­ti­cle 366. It more specif­i­cally de­fines that “so­cially and ed­u­ca­tion­ally back­ward classes” means the back­ward classes as are so deemed un­der ar­ti­cle 342A.

In his judge­ment, one of the 5 judges -Jus­tice S. Ravin­dra Bhutt has stated as fol­lows: 

‘As per Ar­ti­cle 342A(1) the Pres­i­dent (Union gov­ern­ment) only can add a com­mu­nity in the list of back­ward class com­mu­ni­ties and the list no­ti­fied by the Pres­i­dent only should be dealt with by any state and the union ter­ri­to­ries. Only the com­mu­ni­ties listed can avail of any spe­cial ben­e­fits of­fered by the con­sti­tu­tional pro­vi­sions. As the Marathas as a com­mu­nity is not in the list no­ti­fied by the Pres­i­dent the no­ti­fi­ca­tion of Marathas as the back­ward class com­mu­nity by the Ma­ha­rash­tra gov­ern­ment is not valid.’ 

Sig­nif­i­cantly, the High Court of Ma­ha­rash­tra has ac­cepted the reser­va­tion to the Marathas com­mu­nity and the judges who so or­dered are well versed with the In­dian con­sti­tu­tion and other laws. The state’s so­cial and po­lit­i­cal en­vi­ron­ment in­flu­ences the judges of the High Court of Ma­ha­rash­tra, but in the case of judges in Delhi, the psy­che of their own fam­ily and so­cial back­ground in­flu­ences them.

Jus­tice L. Nageswara Rao and Jus­tice Hamant Gupta agreed to the ver­dict of Jus­tice S. Ravin­dra Bhutt. The ar­gu­ment ad­vanced by the So­lic­i­tor Gen­eral that the state gov­ern­ments have the right to no­tify the back­ward class com­mu­ni­ties in the states was not agreed to by these three judges. 

Jus­tice Ashok Bhushan and Jus­tice S. Ab­dul Nazeer did not agree and stated that the state gov­ern­ments have the right to no­tify the back­ward class com­mu­ni­ties in the state and to im­ple­ment the pro­vi­sions of the law in favour of them. How­ever, the ma­jor­ity de­ci­sion came into ef­fect.

WHAT IS THE SO­LU­TION?

Since the time when a law was con­tem­plated for the reser­va­tion ben­e­fit of back­ward class com­mu­ni­ties, there were many who ac­tively worked against the pol­icy of reser­va­tion to BC in the Con­sti­tu­tional As­sem­bly and the Par­lia­ment. 

Arya Brah­mins and Arya Vaish­yars had as their tac­tic to keep the sta­tus of the back­ward class peo­ple who are in a huge ma­jor­ity in the same back­ward stage to re­tain their su­pe­ri­or­ity over them in In­dia. The ju­di­ciary too is al­ways un­der their con­trol.  The High Courts and Supreme Court are un­der the con­trol of Arya Brah­mins and Arya Vaishyas, specif­i­cally the Arya Brah­mins.

Re­tired judge Hari Paran­thaman once grieved over that there was not a sin­gle judge be­long­ing to the back­ward class in the Supreme Court.  The to­tal num­ber of judges in the Supreme Court is 34 and at pre­sent only 27 are in­cum­bents. Of these 27 no one is from the back­ward class. There is no rep­re­sen­ta­tion of back­ward, Sched­ule caste and sched­uled tribe com­mu­ni­ties in the posts of judges in High courts and the Supreme courts de­spite there are el­i­gi­ble can­di­dates from these com­mu­ni­ties for an ap­point­ment.  The Supreme Court and the High Courts must also fol­low the reser­va­tion pol­icy and ap­point such judges. 

Sig­nif­i­cantly, the High Court of Ma­ha­rash­tra has ac­cepted the reser­va­tion to the Marathas com­mu­nity and the judges who so or­dered are well versed with the In­dian con­sti­tu­tion and other laws. The state’s so­cial and po­lit­i­cal en­vi­ron­ment in­flu­ences the judges of the High Court of Ma­ha­rash­tra, but in the case of judges in Delhi, the psy­che of their own fam­ily and so­cial back­ground in­flu­ences them.

Ar­ti­cle 342 which em­pow­ers the Union gov­ern­ment to de­cide on what are the castes that can be sched­uled should be abol­ished, and also ar­ti­cle 342A that em­pow­ers such power in the case of the back­ward class should be omit­ted. The right to de­cide what are castes to be sched­uled and what are the castes to be no­ti­fied should rest with the State gov­ern­ment only. 

This should be so be­cause peo­ple be­long to states and not to the union. They live in their states. The Union gov­ern­ment has no peo­ple for it­self. The Union gov­ern­ment does not know the lo­cal so­cial and ed­u­ca­tional sta­tus of the peo­ple.  Had the Supreme Court de­cided so, it would have been an ap­pro­pri­ate jus­tice, de­vel­op­men­tal to democ­racy and so­cial jus­tice. 

Those who think of One In­dia as their moth­er­land with­out any men­tal at­tach­ment to the states, could not un­der­stand In­dia which has var­i­ous sects of peo­ple who are psy­cho­log­i­cally at­tached to their moth­er­land and con­scious of their birthrights re­gard­ing their mother na­tion. 

It is note­wor­thy that in the past, the mul­ti­plic­ity of races and castes has cre­ated splits within the BJP it­self. Dur­ing 2018, Ma­ha­rash­tra BJP only un­der­stood and of­fered the ben­e­fit of reser­va­tion pol­icy to the Marathas who were suf­fer­ing with­out liveli­hood be­cause of the fail­ure of agri­cul­ture in the state. At the cen­tre the BJP con­tra­dicted with the state BJP and en­acted an amend­ment law to the ef­fect that the power to iden­tify the back­ward com­mu­nity in a state rests with the Union gov­ern­ment in the same year 2018, thus de­feat­ing the de­ci­sion of the state gov­ern­ment and un­der­min­ing the state gov­ern­men­t’s psy­cho­log­i­cal un­der­stand­ing of the sta­tus of the peo­ple of the state. 

Now too, a deep­en­ing con­flict amongst the state BJP and its cen­tral coun­ter­part is in­evitable.  

The Man­dal Com­mis­sion was con­sti­tuted pri­mar­ily to rec­om­mend steps to be taken for the ad­vance­ment of the back­ward class within the frame­work of the Con­sti­tu­tion. As per the Com­mis­sion’s rec­om­men­da­tion, 27% reser­va­tion ben­e­fits were ear­marked by the Union gov­ern­ment for back­ward com­mu­ni­ties. In the case filed against this, the Jus­tice Venkat­achaliah-headed tri­bunal up­held the de­ci­sion of the Union gov­ern­ment. While up­hold­ing the de­ci­sion, there was no ne­ces­sity to im­pose a con­di­tion that the to­tal reser­va­tion should not ex­ceed 50%? Even in that case, Jus­tice Rathi­navel Pan­dian who be­longed to Thamizh­naadu reg­is­tered his de­nial to the Com­mis­sion’s con­di­tion of 50% lim­i­ta­tion.

Fur­ther, the case was re­lated to the cen­tral gov­ern­ment jobs. What was the ne­ces­sity to be fe­ro­cious on the ex­ceed­ing of 50% lim­i­ta­tion by the state gov­ern­ments? The rea­son is the psy­che that the peo­ple of the back­ward class com­mu­nity should not grow equal to the peo­ple whom the judges hail from. 

Jus­tice Ravin­dra Bhut­t’s ver­dict which was based on the ma­jor­ity de­ci­sion says that the Union gov­ern­ment should seek the opin­ion of the state gov­ern­ment but the power to take a fi­nal de­ci­sion is with the cen­tral gov­ern­ment. What is the use of con­sult­ing? The judge agrees that con­sult­ing the state gov­ern­ment amounts to eye­wash only. 

Ashok Bhushan and Ravin­dra Bhutt did not com­ment a word about the 10% reser­va­tion given to the eco­nom­i­cally back­ward for­ward com­mu­ni­ties. The reser­va­tion of 10% to this class ex­ceeds the limit of 50% to 60%. The rea­son is well known.

WHAT IS NEXT, DI­VI­SION OF THE STATES?

The Mo­han Bhag­wat-Mod­i’s gov­ern­ment is busy ag­gres­sively tak­ing away suc­ces­sively the mea­gre num­ber of rights which the Con­gress gov­ern­ment had left.  The ul­ti­mate plan of the BJP is to re­move com­pletely the com­mu­nity-based reser­va­tion pol­icy which lays small im­ped­i­ments to the pro­gres­sive dom­i­na­tion of the Var­nashrama pol­icy.

The 102nd con­sti­tu­tional amend­ment which has usurped the state’s right to iden­tify and add a back­ward class com­mu­nity to the list of back­ward class com­mu­ni­ties and im­ple­ment the reser­va­tion pol­icy to that com­mu­nity is the first step to­wards its goal. This amend­ment bill was passed with­out any op­po­si­tion in the par­lia­ment or out­side of it. This shame is the out­come of un­aware­ness on the part of those who care about democ­racy and com­mu­nal rights. 

The Mo­han Bhag­wat-Mod­i’s gov­ern­ment is busy ag­gres­sively tak­ing away suc­ces­sively the mea­gre num­ber of rights which the Con­gress gov­ern­ment had left.  The ul­ti­mate plan of the BJP is to re­move com­pletely the com­mu­nity-based reser­va­tion pol­icy which lays small im­ped­i­ments to the pro­gres­sive dom­i­na­tion of the Var­nashrama pol­icy.

The ver­dicts from time to time have dis­torted the reser­va­tion pol­icy for back­ward class and then cur­tailed the reser­va­tion pol­icy for Sched­uled Castes and Tribes. What is left is only for the name­sake. The RSS-BJP’s next joint ven­ture is to di­vide all the states into small ad­min­is­tra­tive units and de­stroy the moth­er­lands based on var­i­ous na­tional races and their lan­guages.

WHAT WOULD BE THE FATE OF THE 69% RESER­VA­TION POL­ICY OF THAMIZH­NAADU?

It would be naive to think that the headache is only in Ma­ha­rash­tra. Thamizhs should un­der­stand that the tak­ing away of the states right re­gard­ing the back­ward class in the state of Ma­ha­rash­tra is the de­stroyer-fore­run­ner of the 69% reser­va­tion pol­icy in force in Thamizh­naadu.

The rul­ing party in Thamizh­naadu should ob­ject to and pre­vent Union gov­ern­ments from tak­ing away the right of so­cial jus­tice and pro­pose al­ter­na­tive plans to re­gain the lost rights. Un­less we raise our voice, the union gov­ern­ment will con­tinue its usurpa­tion cease­lessly. 

It will be in­ter­est­ing to see what the Ma­ha­rash­tra gov­ern­ment com­mit­tee of re­tired HC judges sug­gests af­ter study­ing the Supreme Court ver­dict.

All the po­lit­i­cal par­ties, so­cial or­ga­ni­za­tions, and the peo­ple of Thamizh­naadu should de­fend them­selves by mo­bi­liz­ing pub­licly and raise a com­mon slo­gan for re­triev­ing the rights of bal­anc­ing so­cial jus­tice.  Min­i­mally, our im­me­di­ate aim should be:

1. Can­cel­la­tion of the 102nd con­sti­tu­tional amend­ment.

2. Con­sti­tu­tion of a 9-mem­ber bench of the Supreme Court of In­dia to re­con­sider the ver­dict of the 5-mem­ber tri­bunal which de­nied reser­va­tion to Marathas in Ma­ha­rash­tra.

3. The Naren­dra Modi gov­ern­ment should con­sider pos­i­tively the So­lic­i­tor Gen­er­al’s view that the states have the right to iden­tify and no­tify back­ward com­mu­ni­ties. He should pro­claim that his gov­ern­ment will take ac­tion for of­fer­ing reser­va­tion to Marathas back­ward com­mu­nity.