(Written by Prannv Dhawan and Christophe Jaffrelot)

On May 5, the Supreme Court delivered a unanimous verdict on the validity of the 2018 ESCB Law which was passed by the Maharashtra Legislative Assembly to grant a reservation to the Marathas. The court ruled that the classification of the Marathas as a socially and educationally backward class was unreasonable as they belonged to a politically dominant caste with significant economic resources. The court also concluded that the majority opinion in the Indra Sawhney case was correct and that the 50% limit for caste-based reservations did not need to be considered by a broader bench.

The tribunal justified the quantitative limit set on the caste-based reservation by postulating that it was intrinsic to the fundamental principle of equality. He assumed that exceeding the 50% limit would be a “leap in the dark” and lead to a society based on “caste rule”. Emphasizing the need to safeguard the interests of unreserved sections and a “presumption” that all sections have progressed after 70 years of independence, the court rejected the state’s argument that the breach of the boundary was made necessary by the fact that the backward class population was over 80 percent. This episode is yet another missed opportunity by both – the state and the court – to recognize the growing socio-economic differentiation within the dominant castes, which the rulers of those castes also fail to recognize.

If in 2011-12, the average per capita income of the Marathas was second behind the Brahmins at Rs 36,548, against Rs 47,427, their highest quintile (20% of the caste group) obtained 48% of the total income of the Marathas with an average per capita income of Rs 86,750. The lowest quintile earned 10 times less (Rs 7,198) and the poorest 40% received less than 13% of the total caste income – and were at the bottom. lags behind the elite of the listed castes. In fact, the average incomes of the highest Dalit quintile, Rs 63,030, and that of the second highest, Rs 28,897, were higher than those of the three lowest quintiles of the Marathas.

This is in part due to changes on the education front. While the percentage of Brahmins with degrees and above was around 26 percent in 2011-12, it was only 8.1 percent among the Marathas. From 2004-05 to 2011-12, Dalits and CBOs progressed at a faster pace in education. The percentage of graduates among Dalits in 2004-05 was 1.9 percent and more than doubled to 5.1 percent in 2011-12; the corresponding figure for CBOs was 3.5 percent and doubled to 7.6 percent, while for Marathas it was 4.6 percent in 2004-05 and rose to 8 percent in 2011-12. Correspondingly, the percentage of salaried people among the Dalits was around 28% in Maharashtra in 2011-12, compared to 30% among the Marathas.

Thus, the Court refused to recognize the need for positive discrimination of the lower classes of the dominant castes which continue to be seen as a dominant bloc. He fails to admit the complexity that the class role has introduced in post-liberalization India. It is the unequivocal confirmation of a dated approach to social realities and of a purely arithmetic limit which finds no expression in the Constitution. Responding to state assertions about changing social realities, the court said, “There can be no dispute that society changes, that laws change, that people change, but that does not mean that something good and proven to be beneficial in maintaining equality in society should also be changed in the name of change alone.

The court ignored the warning issued by Judge Pandian’s concurring opinion in Indra Sawhney, where he expressed doubts about judicial supremacy in the broad area of ​​social policy, as this could lead to unwanted exclusion of beneficiaries . This note takes on importance in light of the current imbroglio where the government of Maharashtra has responded to this judgment by canceling the reservation in promotions for SC / ST and OBC. After protests, this order was withdrawn but the conflict over reserve and fair representation took on greater proportions thanks to the court’s retrograde judgment.

The judgment represents the culmination of decades of judicial impatience with the principle of proportional representation. The court seems to have forgotten its own observation in NM Thomas (paragraph 120) that functional democracy presupposes the participation of all sections of the people and fair representation in the administration is an indication of such participation. He had also recognized the inequality of births and posed the idea of ​​proportional equality. Thus, the court relied only on the part of the case law which limits the scope of beneficiaries to communities which have been confronted with a delay and exclusion similar to the SC / ST. She rejected the determination of the Marathas as backward, believing that their relative deprivation and under-representation compared to other sections of the general category did not entitle them to affirmative action. She leaned on her decision to reject the reservation for the Jat community and asserted: “… a self-proclaimed socially backward class of citizens or even the perception of the“ advanced classes ”of the social status of the“ less fortunate ”cannot continue to be a constitutionally permissible test for determining delay ”. The tribunal considered the poor Marathes, Jats and Patels to be “self-proclaimed” backsliders because they do not accept official data. Thus, he rejected the state government’s claim that the Marathas lagged behind in terms of professional higher education outcomes and leadership positions in public services. The court could recognize the growing social differentiation of dominant castes if a true caste census were organized – and made public.

Dhawan is a student at the National Law School of India University, Bangalore and Jaffrelot is a senior researcher at CERI-Sciences Po / CNRS, Paris, professor of Indian politics and sociology at the King’s India Institute, London

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