Maratha quota case: Affirmative action is not just reservation, says SC

Government’s affirmative action must go beyond setting aside quotas for Backward Classes, the Supreme Court has said. “Somewhere the matrix has to move beyond reservation. Affirmative action is not reservation. There has to be something more,” said Justice Ravindra Bhat, part of a five-judge Constitution bench hearing several petitions challenging the Maharashtra government decision to set aside quotas for Marathas.

“Why stop at reservation? Why can’t other things also be done? Why not promote education, establish more institutes?” His observations came during arguments by senior advocate Kapil Sibal against a 50% cap on all reservations, which has held sway for over three decades, but is now being disputed. The state government and those in support of the Maratha quota that has taken reservations in the state beyond 50% have dubbed the cap as ‘mere observation’ of the court without force of law and sought a review of the cap.

Appearing for the Jharkhand government, Sibal argued that a cap was never argued or decided in Indira Sawhney case. He argued that the level of backwardness and the number of backward in a state varied from state to state. “India is not uniform territory. Even within a state there is huge diversity,” he contended. He said that though there was merit in the court argument that affirmative action must move beyond mere reservations, it would involve issues such as resource limitations of states, ability to set up educational institutions and find teachers, suggesting it would be more an issue of executive discretion. He also contended that the Sawhney ruling must not be taken as gospel truth for fixing percentages in absence of data. He said all the ruling did was to accept 27% reservation for OBCs recommendation of Mandal Commission. Mandal never recommended a 50% cap, he argued. Arguments in the case will continue.