Mumbai: In the wake of renewed agitations by Maratha activist Manoj Jarange Patil, legal experts say the way for such a quota to fructify can only be via a Constitutional amendment to overcome the Supreme Court bar of a 50% cap. The amendment would need to be through an appropriate central legislation to define what constitutes empirical data, which is a requirement that will have to be met scientifically, they opined.What constitutes socially backward in one state, say, even in Maharashtra, may not in another remote region of the country, said senior counsel S G Aney. Hence, the formulation of a valid empirical requirement is a prerequisite, he said. “Also, what constitutes backward socially in Mumbai cannot be equated with a situation in Chandrapur,” he added.Experts say in the absence of any standardised formula there would be a need to fix criteria for empirical data or a national census for any additional SEBC quota: Aney, a Constitutional law jurist, said for an additional quota in the state, the govt would “have to reconcile with not just the percentage bar but also the requirements of empirical data. For which it would have to legislate what the empirical data is”.“The legislation would not be easy and would involve questions of distribution of federal power because, as of now, each state has the power to decide who or which community within its area is backward. It is difficult for the Centre to determine which corner of a state is backward,” Aney told TOI on Saturday. But he cautioned that such an exercise entails the gathering of empirical data, which, as a rule, was previously done under the national census.This constitutional requirement of a census every decade has not been acted upon since 2011. The process of data gathering under the national census can provide the required empirical data to determine the requirements for social and educational backwardness for the purposes of such a reservation, he added.Another senior counsel also said the SC in the judgment merely said there must be empirical data. “That Maratha or any community, for that matter, constitutes socially and educationally backward status, involves a wide study, one akin to the census,” Aney stressed. The state, to meet the SC requirement of empirical and scientifically collected data, appointed the Justice S S Shukre Committee after his retirement as Bombay High Court judge. The HC is hearing a clutch of public interest litigation (PIL) against the latest iteration of the Maharashtra govt’s 10% Maratha quota under the special category of Socially and Educationally Backward Class (SEBC) Act for education and public jobs.The commission recommended that only the non-creamy layer of Maratha class would be entitled to reservation.The Supreme Court in the Indra Sawhney constitutional bench judgment had set a 50% ceiling for reservations, except in compelling or exceptional cases. Marathas in the state constitute 28% of the population but display “exceptional backwardness” and 84% of the community belongs to the non-creamy layer “which deserves… adequate reservation in employment and education…,” the Maharashtra State Backward Class Commission (MSBCC) said, whose recommendations petitions have questioned.
