Law

Why the Bombay HC Judgment on Maratha Reservation Is Inherently Flawed

The high court judges – and the Gaikwad Commission – have failed to realise that economic backwardness cannot be conflated with social backwardness.

There are egregious flaws in the Bombay high court judgement upholding the Maharashtra government’s decision to declare Marathas as a socially and educationally backward community and grant them reservations. These flaws have crept into the judgement because the high court has endorsed the findings of the Maharashtra State Backward Class Commission – popularly known as the Gaikwad Commission after its chairman, Justice (retd) M.G. Gaikwad – pertaining to the social backwardness of Marathas, without taking into account the conceptual confusions dogging them.

The high court judgement – delivered by Justice Ranjit More and Justice Bharati H. Dangre – prompted P.S. Krishnan, who was the first-member secretary of the National Commission for Backward Classes, to tell this author, “If the Marathas are socially backward, then any community can be proved backward. If the methodology of the Gaikwad Commission is to be followed, then any community can be shown to be backward and eligible for reservation.”

Regardless of the robustness and veracity of the Gaikwad Commission’s data, a social group’s economic backwardness does not necessarily imply that it is also socially backward.

In fact, it is not possible to quantify social status as it is not a statistical fact. Social status is a function of how others perceive a caste, whether it is ranked high or low in the social hierarchy. A group’s low social status is rooted in history, linked as it is to their traditional occupation which inhibited them from getting an education. This explains their relative absence from the modern professional class and government jobs.

Low social status often produces economic backwardness. But economic backwardness does not lead to low social status. For instance, a Brahmin taxi driver enjoys high social status, caste-wise.

Misreading the facts

Indeed, some of the Gaikwad Commission’s findings, reproduced in the Bombay high court judgement, are bereft of fundamental sociological insights and appear contradictory.

For instance, the judgement says:

“The commission noted that a large class of Maratha community in Mumbai city is leading a life of dabbewalas [or those who cook and supply tiffin to offices]. The commission found that about 4800 families are…engaged in the said occupation. Out of this 4800 families, 4,600 families i.e., 95.8% are of Marathas.”

The Gaikwad commission, the judgement says, found the customer base of dabbawalas declining, because of which some of them have been compelled to look for alternative jobs, including those classified as ‘menial’. This is undoubtedly a symptom of economic distress – but it is certainly not an indicator of low social status, if we are to go by traditional caste rules determining who can eat food cooked by whom.

For instance, meals prepared and supplied by Dalits will likely have few takers. Conversely, Brahmin cooks are sought after, particularly for weddings. From this perspective, the preponderance of Marathas among dabbalwalas, ironically, indicates their high, not low, social status.

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The judgement cites the commission’s finding that says, “98.53 percent of Maratha families do not enter into inter-caste/inter-religious marriage.” Which caste in India does not frown upon such marriages? The reluctance to arrange inter-caste marriage is stronger among those pegged high in the caste hierarchy. Might not the low incidence of inter-caste marriage among the Marathas point to their high social status?

The commission is also quoted in the judgement as saying that “94 percent of the Maratha families do not enter into widow/widower remarriage in family which is the highest as compared to other castes.” Historically, the lack of widow/widower remarriages was due to the tradition of groups ranked ritually high. It wasn’t such a problem among lower castes, some of whom, though, adopted this practise in imitation of higher castes for social mobility. The Gaikwad Commission appears to have mistaken conservatism for social backwardness.

In yet another argument favouring the claim of social backwardness for the Marathas, the judgement notes:

“The commission…found that Upanayana Sanskar [sacred thread ceremony] is the sine qua non for elevation to the higher class/caste. The commission concluded that Upanayana Sanskar is not observed/performed in the Maratha community and therefore the same is considered to be Shudras.”

This observation seems needless as all Shudra communities are not necessarily deemed socially backward. Krishnan observes, “Kayasthas don’t go through the sacred thread ceremony. Aurobindo Ghosh, Subhash Chandra Bose, Biju Patnaik, they were all Kayasthas, who have a high representation in government service. Can we regard Kayasthas as socially backward? In the South, the Kammas, Reddys, Nairs, to name a few, are ‘Shudras’ under the old Varna system and do not wear the sacred thread. But, neither does the society perceive them as socially backward nor do they themselves.”

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The judgement cites data from the Gaikwad commission report to establish the economic backwardness of Marathas:

“76.86% of the Maratha families are involved in own agriculture and 26.46% out of that, are also undertaking farming labour in the agricultural farms of others which is the highest of all other castes and classes.” The judgement says the commission found that the “holding of agriculturists [in Maharashtra] have decreased in the course of time because of ceiling laws as well as family partitions.”

But fragmentation of land is true of most agricultural communities, not all of whom are socially backward.  This is because ownership of land is a significant determinant of social status. With 78.86% of Maratha families owning land, they cannot possibly be suffering from social backwardness of a severe nature. What is more relevant is to determine which caste possesses what percentage of land in a village or taluka. The more land a caste possesses in a village or taluka, the higher its status is likely to be.

Historically, the Marathas were not just agriculturists. They were rulers – Shivaji for instance – and constituted a formidable phalanx in the army of the Peshwas and British colonial rulers. Even today, they dominate the powerful sugar cooperatives in the state and politics. Ten out Maharashtra’s 18 chief ministers since 1960 have been Marathas. The silent marches the community undertook for demanding reservation – 57 just between August 2016 and December 2016, in which 15-20 lakh persons participated, according to the judgement – are an expression of its redoubtable clout in desperate times.

It’s not all about economics

Their desperation has risen from the agrarian distress that Maharashtra, like other parts of India, has been reeling under. Citing a Gokhale Institute of Economics report that found “40% of total farmers who committed suicide were Marathas”, the judgement notes, “This report is a reflection of the agrarian crisis in the State and since most of the Marathas are agriculturists, it brings forth the financial distress faced by the community. In the backdrop of the said scenario, the youth of this community is looking towards reservation as a solution to their progress and march towards cities…”

The Gaikwad commission’s data do indeed paint a dismal economic picture of the Marathas. For instance, the judgement says, “On the basis of data and survey it [Gaikwad Commission] has arrived at the conclusion that 37% families belonging to Marathas are below the poverty line compared to the State rural average of 24.20%.”

A social group caught in the throes of economic crisis does not become socially backward. As Krishnan explained, “There will always be rich and poor people in a community. [A group could also witness a downward mobility.] But that can’t become a determinant for declaring it socially backward.” Nor is reservation a tool for removing poverty or arresting the economic decline of a social group. “Economic decline and agrarian distress can be tackled by a slew of measures appropriate to the agriculture sector, which does not include reservation.”

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These nuances were lost on the Gaikwad commission, whose data the judgement cites to establish that the Marathas are inadequately represented in government jobs. Detailing the representation of the Maratha community in services under the state, the judgement says:

“…the proportion of Maratha class employees against the filled post as on 31st August, 2018 is 18.95% in Grade-A, 15.22% in Grade-B, 19.56% in Grade-C and 18.23% in Grade-D. The combined average proportion of Maratha employees in all the four grades is found to be…19.05% against the filled posts.”

These figures should make us think the Marathas have a healthy presence in the state services. But not the Gaikwad commission, which the judgement says, “arrived at the conclusion that in none of the four grades, the strength of Maratha Class employees is touching the proportion to their population in the State which, based on various sources, is estimated to be 30%.” The commission seems to be arguing for proportionality – representation of a caste according to its population – in services, not adequate representation.

The Marathas are adequately represented even in the elite services – Indian Administrative Service, Indian Police Service and Indian Foreign Service – if we are to go by the judgement:

“The Commission also called for information about the officers in All India Cadres i.e. IAS, IPS and IFS cadres. The Commission found that so far as IAS cadre is concerned, out of unreserved posts, Marathas occupy 15.52% and other open category occupies 84.48% posts. In IPS cadre, out of total unreserved posts Marathas occupy 28% and other open category occupies 72% posts. So far as IFS is concerned, out of total unreserved posts, the Marathas occupy 17.97% and other open category occupies 82.03%.”

These data establish that the status of Marathas as an agriculture caste has not been a barrier for them to compete in government services. It undermines the community’s claim of being a social backward community.

Both the commission and the judges seem to mistake adequate representation for proportionality. This is one of the reasons why the judges have chosen to remove the Supreme Court-mandated 50% cap on reservation. Their judgement says as much:

“We hold and declare that the limit of reservation should not exceed 50%. However, in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, inadequacy of representation and without affecting the efficiency in representation.”

It is debatable whether the backwardness of Marathas is so acute and pressing that it constitutes an “extraordinary situation”. No doubt, the Bombay high court judgement will be challenged in the Supreme Court, which is already grappling with the issue of whether the Modi government was right in removing the 50% cap on reservation to grant 10% quota for the so-called Economically Weaker Sections.

The Bombay high court judgement is yet another indicator of India turning the reservation policy upside down and moving towards proportional representation of castes in jobs and education. Can India completely knock out the idea of competition devoid of identity? I think not.