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'Can you divide society only on the basis of caste?'

By Syed Firdaus Ashraf
December 03, 2018 09:24 IST
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'We were supposed to be a united nation based on unity and diversity.'
'Now what we are doing is there will be a class called Marathas, Dangars, etc.'
'The 100 per cent of our nation's population will be in classes and you will be allocating the nation's education and service resources in terms of classes.'
'How does it work out in terms of equality? Where is your equal nation?'

IMAGE: Members of the Maratha community celebrate the passage of the Maratha Reservation Bill by the Maharashtra assembly at Azad Maidan in Mumbai. Photograph: PTI Photo

Last week, the Maharashtra government passed the Maratha Reservation Bill granting a 16 per cent quota in government jobs and educational institutes to Marathas as per the recommendations of the State Backward Class Commission.

The quota for Marathas has increased the overall reservations in Maharashtra to 68 per cent in jobs and education, leaving only 32 per cent accessible in the open category.

The Congress-Nationalist Congress Party had brought in the Maratha Reservation Bill in 2014, but the Supreme Court had rejected it.

Following this, the Maratha community came out on the streets and held 58 silent protest marches across the state, demanding reservations, causing a huge worry for the Bharatiya Janata Party-Shiv Sena government led by Devendra Fadnavis.

Now that the state government has once again passed the bill, will it also be challenged in court? And will the court once again reject the Maratha quota?

"By doing this you are now virtually reducing the open category to 32 per cent in Maharashtra, which is highly unfair to them," former Maharashtra advocate general Shrihari Aney tells's Syed Firdaus Ashraf.


16 per cent reservations for the Maratha community in education and jobs -- do you think it can be implemented?

It is possible as they (the Maharashtra government) seem to have the political will to implement it. Whether it is legally possible is another question.

If there are no legal hurdles, then it would be possible to implement such a move.

The courts had earlier rejected reservations for the Marathas. So, how is it that the government can once again grant the Marathas quotas?

The basis of rejection was entirely different then. The basis of reservation at that time was faulty.

The decision was not based on adequate inputs and on that ground the court was not inclined to consider it to be a valid legal decision. This time, those procedural lacunae have been overcome. So you cannot compare the two situations.

On what grounds did the court reject reservations for Marathas earlier?

In the earlier case, the reservation was granted in a double-barrel fashion to both Marathas and Muslims.

When you grant any reservation to anybody, there has to be an empirical search about whether the community to which the reservation is to be granted is indeed socially and educationally backward.

And if it is so, whether it deserves reservation as the only way by which their social and educational backwardness can be ameliorated.

Now these are methods which have to be gone into before reservations can be granted, and the previous (Congress-NCP) government had not done any of this.

They got a report from the Narayan Rane committee which was specially constituted to look into the Maratha reservation issue at that time (in 2014) and it was argued before the court, with certain amount of success, that when you already have a minority commission in place, then why is it that the commission is not making recommendations as required by certain Supreme Court judgments and why are you taking recourse through a non-official method of advice?

All those things cumulatively made the court observe that you should have proper inputs before you proceed to make reservations of this kind.

And by proper inputs, obviously, the court meant a proper committee should come in and an informed decision must be taken, which they have done this time around by appointing a committee.

This time, the minority commission was asked to submit a report and they have submitted a report, but at this moment we do not know the contents of the report. This could be one of the procedural flaws as they go along.

As it stands, based on that report, they have proceeded to this legislation and got the reservation passed.

Is that the reason the Marathas have been categorised as socially and educationally backward so it is easy to give them reservations?

As you know, the Constitution of India only recognises schedule castes and schedule tribes (for reservation). There is no such thing as Other Backward Classes as far as India's Constitution (is concerned), but it does recognise Article 15 which deals with educational backwardness and Article 16 which deals with inadequate representation of services in the state.

It does recognise social, cultural and educational backwardness as a factor which can be attended to or even ameliorated by providing some special concessions to such people. And taking a cue from this, the OBC class was born.

And this is not unique to Maharashtra, but is all over the country. Social and cultural backwardness and educational backwardness becoming the normative measures led to various categories being included in the OBC class.

What the Supreme Court says is that together with schedule castes, schedule tribes and OBCs, reservations ought not to exceed 50 per cent. So the exercise begins by trying to put them all in the 50 per cent group.

Now one of the flaws in the current scheme is that they have exceeded that percentage (to 68 per cent in Maharashtra). Now that is going to be a serious tipping point.

The Marathas -- had they been included in the OBC category -- would have actually cut into the reservations already provided for all the OBCs.

If that had happened, the OBCs would have protested the inclusion of Marathas. And in order to avoid that kind of conflict, this government has created a new class which is called educational and backward class.

Now what they have done is that they have created a fourth category for reservations which the Constitution doesn't recognise; not that the Constitution agrees with the third category like OBCs for reservations.

By doing this, you are now virtually reducing the open category to 32 per cent in Maharashtra, which is highly unfair to them.

If the Supreme Court has stipulated that reservations can't exceed 50 per cent, how come Tamil Nadu has 69 per cent reservations and now Maharashtra is reaching 68 per cent in jobs and education?

The Supreme Court never said 50 per cent reservations is God's word, like carved in stone. It said as far as possible reservations should be 50 per cent. So there is a certain flexibility there which could possibly permit movement.

Probably, the Maharashtra government can justify exceeding the 50 per cent reservation requirement, but the difference between Tamil Nadu and Maharashtra is that though in Tamil Nadu they have exceeded the reservations they took the trouble to get it passed through Parliament and got it put into the Ninth Schedule.

Now the Ninth Schedule is a part of the Constitution and when something is put in, then it can't be challenged as a violation of Fundamental Rights.

Now, the government of Maharashtra is not taking that route for the obvious reason -- the Centre doesn't have a majority in both Houses (of Parliament) as it did then when the law was passed for Tamil Nadu.

In the current scenario, I don't believe the ruling party -- the BJP -- has that kind of numerical strength in both the Houses.

Another reason is that the Tamil Nadu law had been operating forever and by the time the matter reached the Supreme Court, they were reluctant to interfere.

Therefore, the Tamil Nadu matter sustained, but the Rajasthan matter didn't when it went to the apex court and the Supreme Court granted a stay and this is where it stands.

Now even if the central government goes for the Ninth Schedule for Maratha reservations, then every other group in other states like Patels in Gujarat will come out and say that their community reservation too must be included in the reservation list.

It will be like opening a Pandora's Box and there will be agitations all over the country.

(Note: The Rajasthan government had passed a bill to raise reservations for OBCs from 21 per cent to 26 per cent. With this, the quota for jobs in government and the education sector increased to 54 per cent, thus crossing the ceiling of 50 per cent set by the Supreme Court. The five castes that were included for reservations were Gurjar, Banjara, Gadia-Lohar, Rebari and Gadaria.)

IMAGE: In August 2018, the Marathas staged a protest in Mumbai demanding quotas in government jobs and college admissions. Photograph: Shailesh Andrade/Reuters

This caste politics and opportunist reservations for votes looks like a very worrisome scenario for Indian society.

Of course, it is worrisome. You cannot stratify Indian society. In fact, it is the very antithesis of what our Constitution had set out to do.

We were supposed to be a united nation based on unity and diversity. Now what we are doing is there will be a class called Marathas, Dangars, etc.

The 100 per cent of our nation's population will be in classes and you will be allocating the nation's education and service resources in terms of classes.

How does it work out in terms of equality? Where is your equal nation?

Then we will have a sectarian nation and unfortunately, sectarian in its caste and in its religion.

When you have such a polity rising, then you have an antithesis of what the Constitution envisioned.

There is a feeling among intellectuals that India suffers from Brahminical domination in its bureaucracy and other fields.

That is stupidity. They are trying to stereotype the content of the opposition to reservations by calling it Brahminical.

They think that superior people are opposing reservation. And as things go, the superior people are Brahmins and therefore, the opposition to reservation is from Brahmins.

Even as I am speaking to you, I happen to be a Brahmin and when I argue the matter it will be viewed from that point.

It is very difficult to explain to people that the Constitution does not permit it and it has nothing to do with the fact that I am a Brahmin.

Isn't it true that all crème de la crème jobs have been taken up by Brahmins and other upper castes? And this needs to end for a just society.

That may be the situation and I see no reason why it should not be broken.

But the question is: Can you really divide society only on the basis of caste?

There may be a very strong case as to why 4 percent of the Brahmin population in the country should occupy almost 100 per cent of the top jobs.

There could be a very strong argument against it, no doubt, but that is a different argument from saying we will therefore divide the whole society on the basis of caste and distribute all the resources caste-wise or religion-wise. That does not make sense.

Can a politically powerful group like the Marathas be called socially and educationally backward?

That is one of the points that will be debated; why the report thinks Marathas are backward.

We earlier had a report in the form of the Narayan Rane committee which thought Marathas are backward, but nobody accepted that report as it was found that it was not coming from a level of authority.

Earlier, there were 10-year-old reports that found Marathas not to be backward so the questions that are being asked is what happened in the last 10 years that makes a forward community become backward.

So seriously speaking, there will be questions asked to justify the backwardness claim of the Marathas.

Having said that, I must say we must not confuse well-heeled Marathas with all the rest of the Marathas.

Do you think reservations and caste politics were further complicated by adding OBCs to the list?

OBCs did not exist and nowhere in the Constitution (reservation for OBCs) has been brought up.

But as I said, social and educational backwardness has been spoken of and concessions for that are available, which has converted itself into a class -- the OBC.

The Constitution says there can be no reservations on the basis of religion. Then how is it that some states are including Muslims in reservations?

The Maharashtra government is wrong when it says reservation for all Muslims as that may not be right, but within the Muslims there are clans and sub-class which deserves protection just like in Hindus.

Those should be afforded and that should not be a problem. It is not a religious reservation. It is for economical, social and educational status that would make them access reservations.

It is wrong to say all Muslims merely by virtue of being Muslim will be entitled to reservations. That does not work.

But Islam does not believe in casteism.

It does not believe, but the ground reality is different and they are downtrodden.

Let us not forget historical facts too -- that many Muslims in India originally have converted from (Hindu) lower castes.

They still continue to carry the lower caste (status) into the religion they went in.

Also, the social structure of the whole country is such that those who belong to the upper castes, irrespective of religion, still maintain distance from the lower classes.

In Kerala, you have separate queues for Brahmins, Christians and Dalit Christians.

The stratification of society is something quite different from what religion tries to say. The object of religion, however laudatory, the ground reality is quite different as people are distinguished on the basis of caste.

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Syed Firdaus Ashraf /