Historical evidence is not enough to prove a caste’s backwardness: Shreehari Aney
Eminent lawyer Shreehari Aney on the constitutional and legal aspects of the demand for reservation being made by several castes and communities such as Marathas
Mumbai: Shreehari Aney, an eminent lawyer, constitutional law expert and public intellectual, resigned as advocate general in March, after political parties objected to his open support to Vidarbha statehood. Last month, he formed the Vidarbha Rajya Party to press for statehood. In an interview, Aney comments on the constitutional and legal aspects of the demand for reservation being made by several castes and communities, including Marathas in Maharashtra. Edited excerpts:
The Marathas and Muslims in Maharashtra, Patidars in Gujarat, Jats in Haryana, and Gujjars in Rajasthan have demanded quotas. But the governments ruling these states are confronted with a Supreme Court (SC) cap of 50% on reservations. How serious is this SC hurdle?
The SC judgement in the Indira Sawhney and others Vs Union of India in 1992 which held that total reservation under Article 16 (4) cannot exceed 50% has to be seen in a broader context. It took a holistic view of the entire reservation issue and gave a kind of broad judgement which sought to put an end to the ad hoc demands and litigations.
The SC took a view that beyond the constitutionally guaranteed quota given to the scheduled castes and scheduled tribes and others, the overall reservation should not exceed 50%. This judgement has broadly been accepted but that in itself does not constitute a very difficult hurdle to the process of giving quota to a particular caste or category.
The more difficult hurdle to negotiate is the process that is required to be followed to declare a particular caste or community economically or social backward, and thus deserving of quota.
What is this process?
The process has been laid down via a couple of constitutional amendments to Article 16 (4) and the SC judgement in the M. Nagaraj and others versus Union of India and others case in 2006. The state concerned has to carry out this process. In the first step, the state government has to make an objective assessment whether a caste or community demanding quota is entitled to it. There cannot be an element of subjectivity in this assessment. For instance, the ruling political dispensation in a state cannot conclude this assessment in favour of castes or communities that are close to it.
Then, as per the SC observations in the Nagaraj case, the state cannot make this assessment in a vacuum and it must provide quantifiable and actual data that are applicable in a particular demand for quota. Using these quantifiable and objective data, the state has to decide whether a particular caste falls in the category of backward caste or can be declared a special backward class or category by itself.
Once this has been done, the state has to decide if this community is entitled to a quota. Here also, the SC has said the state has to investigate objectively if reservation is well-deserved and has specified two ways to help the state find this out. One, the state has to see if the caste is adequately represented in government jobs. Two, assuming that the caste is not adequately represented, the state has to decide if giving quota to this caste in government jobs would negatively affect the overall efficiency of the administration.
Maharashtra government has said it is building a strong legal case to make reservation for Marathas legally fool-proof.
That may help. But if the government is extracting evidence from archives and inscriptions to prove that Marathas have been socially and economically backward for centuries, that evidence may not be accepted by the court as the basis for granting quota today.
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Business NewsPoliticsPolicyHistorical evidence is not enough to prove a caste’s backwardness: Shreehari Aney
First Published:13 Oct 2016, 01:24 AM IST
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