Maratha quota hearing: Only EWS quota may remain, but these are policy matters, says SC

The Supreme Court Thursday said that all reservation may go one day and only a quota based on economic criteria may remain, but it clarified that these are matters of government policy.

“You may be right. This may be a beginning. All reservation may go and only (quota for) EWS (Economically Weaker Sections) may remain. But these are policy matters,” said Justice Ashok Bhushan, heading a five-judge Constitution bench hearing the challenge to the Maharashtra State Reservation for Socially and Educationally Backward Classes Act — which provides for a quota to the Maratha community in jobs and admissions.

The bench is also considering whether there is a need to revisit its 1992 nine-judge Constitution bench decision in the Indra Sawhney case capping the maximum quota limit at 50 per cent.

The judge made the remarks after Advocate Shriram P Pingle contended that caste-based reservation were being politicised. Pingle told the bench, also comprising Justices L Nageswara Rao, S Abdul Nazeer, Hemant Gupta and S Ravindra Bhat, that “I think the elephant that needs to be addressed in the room is caste”. He said that the Indra Sawhney judgement “for good or bad, recognised caste as a ground for extending reservations”. The counsel stressed the need to make an endeavour to remove caste-based reservations in a phased manner.

“Your thoughts are very radical and good. But it is for the government to take a decision that caste and reservation should go,” the bench responded.

“That is for Parliament and the legislature. It is a welcome idea…When the Constitution was enacted, the object was a caste-less, egalitarian society,” said Justice Bhushan.

Pingle pointed out that Maharashtra was the only state where the Mandal Commission list was used to include caste which does not exist in Maharashtra. After the Indra Sawhney judgment, more than 100 castes were included, he pointed out.

“Over-reservation is anti-reservation,” he said, adding that since this case has a larger magnitude on the social life of the country, it may be appropriate to consider all the pending cases and take a holistic view.

Appearing for the petitioners opposing the Maratha quota law, Senior Advocate Shyam Divan reiterated that Sawhney need not be reconsidered. The 50 per cent limit should be retained, he said, adding “we are more equal now than we were 70 years ago and the focus must now be on other forms of affirmative action”.

If the 50 per cent limit is breached, there will be political pressure not to reduce reservation, he said, adding that reservation must be reduced with economic progress.

Constitutions and constitutionalism, he said, are about balancing. “The essence of 50% rule is that it balances between aspirations of different elements of society and balances the interests of those who are not gaining from reservation.”

Hearing the matter earlier, the bench had said that the 50 per cent ceiling “is a manifestation of the right to equality and wondered what would happen to the concept of equality if the ceiling is scrapped.

The court also asked why affirmative action should be limited to reservation and not extended to promoting education and establishing more institutes for upliftment of backward classes.