Come elections, and the issue of reservations spills on to the streets, besides echoing in courtrooms. Behind the din, the substantive questions are often lost. This week, a five-judge Constitution Bench of the Supreme Court takes up the breach of the 50 per cent ceiling on reservation in the ongoing Maratha reservation case. The specific appeal is against a judgment of the Bombay High Court that upheld the validity of the Maharashtra State Socially and Educationally Backward Classes (SEBC) Act that provided reservation to Marathas in public and private educational institutions. The substantive question that the apex court is considering is about whether the Constitution (102nd) Amendment curtails the power of the States to extend reservation to SEBCs and if the Indra Sawhney judgment, that capped all reservation at 50 per cent, needs to be re-examined. There are several States including Haryana, Telangana and Rajasthan where the 50 per cent cap has already been breached or is in the process of being breached. Additionally, there is the 124th Amendment to the Constitution that provides 10 per cent reservation to economically weaker sections. Then there is the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in educational institutions and of appointments or posts in the services under the State) Act of 1993 which has thus far been protected from judicial review under the Ninth Schedule umbrella.
The Tamil Nadu quota law has been challenged in SC by a student, CV Gayathri, through her father S Vaitheeswaran on the grounds that it provides 69 per cent reservation in admission and in public services which is “unreasonable and excessive”. If larger Constitutional questions come up, then the Tamil Nadu quota law too may be examined. While the SC and the provincial governments strain over how much quota is enough, the core of the issue here is that of access to education. This has been exemplified by Gayathri now and another woman seven decades before, Champakam Dorairajan. Parliament introduced the First Amendment in the Constitution, annulling the seminal Dorairajan judgement where SC had struck down the order of the Madras government that allotted seats in medical and engineering colleges to different communities as part of the policy guided by Directive Principles under Article 46. While moving the First Amendment Bill, BR Ambedkar said under Article 46, the government has an obligation to promote the weaker sections’ welfare. The First Amendment introduced the amended Article 15 to make provisions for socially and economically backward classes. Sixty-eight years later, Union Minister Thawar Chand Gehlot quoted Article 46 to introduce reservation for economically weaker sections.
In 68 years, the policymakers could have done better than rustle up myriad quotas as a cover-up for lack of universal access to education. The stark absence of any discourse on universal education which would have aided affirmative action is unfortunate.