Maratha Quota Case: A missed opportunity to revise the 50% limit

Equality, the edifice upon which every modern democracy is built, takes a lot more than a mere mention in the Constitution to actually affect society. For a country trying to build itself from scratch, it becomes a challenge to distribute the limited resources reasonably and rationally. For a policy to be justifiable, it must provide equal opportunity to every class of its citizens.

Reservation policy in India is intended to provide a representation to the marginalised. It has been a tool to achieve equality ascribed in the preamble of our Constitution, and rightfully so. The Indian Judiciary, the supposed vanguard of the Indian Constitution, has always been at loggerheads with the legislature while adjudicating the constitutional validity of various laws enacted to provide reservation.

The trajectory that Indian Judiciary has taken in interpreting the laws providing for reservation is from a strict formal interpretation impervious to the existing socio-cultural and structural inequalities to that of liberal interpretation aimed at substantive equality. It moved towards Considering the structural and institutional obstacles that prevent the marginalised from accessing the opportunities available.

In the case of M.R.Balji vs State of Mysore (1963 AIR 649), the constitutional bench of the Supreme Court has given a formal interpretation, where it ruled that Art 15(1) and Art 16(1) embodies equality of opportunity and any classification based on race, caste or gender as provided through the Art 16(4) is deemed to be an exemption. Supreme Court has put forward the rule of capping the reservation at 50% in the present case.

The Supreme court has shifted its stance to adopt the principles of Substantive equality in the matter of State Of Kerala & Anr vs N. M. Thomas & Ors (1976 AIR 490). It aims to overcome the existing structural and institutional inequalities that made the equality inscribed in the Constitution a distant mirage. The Court has acceded to Rawl’s Equality principle of providing a fair equality of opportunity considering institutional limitations that prevent oneself from accessing the available opportunities. The Supreme Court ruled in the present case that Art 16(4) is an emphatic part of Art 16(1) and not an exception, as claimed earlier.

The two stances of limiting the reservation to 50% on the principle of formal and procedural justice, treating Art 16(4) as an exemption and incorporation of principles of substantive justice and treating Art 16(4) as an emphatic part, was called into question in Indra Sawhney case, wherein the 50% limit is allowed to stay.

The resultant problem arises when a policy intended to fulfil the objective of substantive justice breaches the 50% cap. It is universally deemed that when there exists a gap between representation in a specific area to that of representation in the population, then it is evidence purporting to the presence of structural barriers to equality of opportunity and discrimination. Hence when the Gaikwad commission report suggests that 80-85% of the Maratha community is backward and a policy aimed at providing for increased reservation is curtailed on the grounds of principles rooted in procedural justice and formal interpretation, it leads to the undermining of principles of substantive justice.

In striking down Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, 2018 by ruling that reservation beyond 50% is unconstitutional and refusing to refer the 50% limit on the reservation to a larger bench, a golden opportunity in advancing the principle of substantive justice is lost.