Rajasthan's new quotas just won't pass muster in courts

QUICK PILL

Quota-clysm

• The Rajasthan govt got 2 Bills passed Tuesday for reservations

• The Bills grant quotas for upper caste poors, special backward classes

• The state would now have 68% reservation

Legal reservations

• Experts say the new Rajasthan quotas will fail legal scrutiny

• The Supreme Court has kept the reservation ceiling at 50%

• The apex court has also consistently struck down quotas on economic basis

Recently RSS chief Mohan Bhagwat advocated against using the quota system for political ends. But on Tuesday, Rajasthan's BJP government got two Bills passed raising reservation in education and government jobs to 68%.

That's above the 50% cap that the Supreme Court has set for all kinds of reservation. Not only that, the Bills go against the constitutional provision of not granting reservation on economic basis.

Five-time independent MLA and senior advocate Manak Chand Surana vociferously objected to the EBC Bill during its passage in the House. He questioned the Assembly's authority to grant reservations on economic basis. BSP member Manoj Nyangli too shared the same view.

But the state's Legislative Assembly approved the Bills in without any deliberation in just five minutes.

The Rajasthan Special Backward Classes (Reservation of Seats in Educational Institutes in the State and Appointments and Posts in Services under the state) Bill 2015 grants 5% quota to special backward classes, including Gujjars and few other communities.

The Rajasthan Economically Backward Classes (Reservation of Seats in Educational Institutes in the Sate and Appointments and Posts in Services under the State) Bill 2015 is to reserve 14% of seats for the economically backward.

In view of the apex court's past rulings, it is not difficult to conclude that the bills would not stand judicial scrutiny which was inevitable, said Satya Narayan Singh, former member secretary of the Rajasthan OBC Commission.

Perhaps knowing this, the Assembly also passed resolutions requesting the Vasundhara Raje government to try to get them included in the Ninth Schedule of the Constitution.

The schedule protects legislation from judicial review. It was added to the Constitution by the 1st Amendment, which came into force on 18 June, 1951.

Several experts, however, think judicial intervention was not barred by law or the Constitution.

The repercussions

The new Rajasthan quotas show how politicians and political parties create long-term problems for their short-term interests, said Satya Narayan Singh, former member secretary of Rajasthan OBC Commission.

Following a prolonged Gujjar agitation that had left over 70 dead, the then Raje government in 2008 had brought a single Bill for providing a 5% reservation to the community and a few others and a 14% quota for EBCs.

That Bill was stayed by the high court for taking the quotas above the 50% bar.

The Supreme Court has maintained that governments can create sub quotas within other backward classes (OBC), but a special group cant be created to give reservation over and above the ceiling for the OBCs.

Gujjars are anyway part of OBC, Singh said.

It is relevant to recall that in 1991, the Narsimha Rao government had issued a notification under which a 10% quota was formed on economic basis and a there was provision for reservation on the basis of poverty within the 27% quota on the basis of social and educational backwardness.

But in the famous Indra Sawney & others vs Union of India case (also known as the Mandal case) a nine-judge Supreme Court Bench struck them down.

Reservation can be categorised only on the basis of comparative social backwardness, not poverty, the court said. It added that without any reference to caste, reservation could be given on the basis of occupation and income.

That Supreme Court order also said reservation was for a grouping, any individual. Under Article 16 (1) of the Constitution, no economically backward individual could be granted reservation on the basis of income and property as that would be against the fundamental Right to Equality.

Former Rajasthan Chief Minister Ashok Gehlot had written to the then Prime Minister Atal Behari Vajpayee requesting for a constitutional amendment to facilitate reservation on economic basis. Vajpayee sought the opinion of his Attorney General, Soli Sorabjee. On 18 June, 2003, Sorabjee made it amply clear that in view of the court's decision, reservation couldn't be given on economic basis.

A constitutional amendment would be required for reservation for poorer sections within the upper castes and the apex court's 50% ceiling would be applicable in that case too, Sorabjee said.

He categorically told the Vajpayee government that the EBC quota would be against the spirit of the Constitution.

The Vajpayee government still constituted an EBC commission, which failed to finalise a formula for reservation for the poor from upper and forward classes.

'The new quotas show how politicians, parties create long-term problems for short-term gains'

The Manmohan Singh government constituted a similar commission that too failed in making any recommendation on economic backwardness and a related quota.

When the current Union Home Minister Rajnath Singh was the CM of Uttar Pradesh, he had prepared two lists of dalits and backward classes on economic basis reserved 5% seats for members of the general category. That too was struck down by the Supreme Court.

All this goes to show that without a constitutional amendment any reservation on the basis of economic backwardness would be against Articles 15 (4), 16 (1) and 16 (4) of the Constitution and, therefore, would be illegal.

The existing quotas in Rajasthan already add up to 49.5 per cent - 15% for scheduled castes, 7.5 % for scheduled tribes and 27% for OBCs.

Rajasthan's Parliamentary Affairs Minister Rajendra Rathore defended the Bills. He cited the example of Tamil Nadu that has quotas exceeding 50% but are included in the Ninth Schedule.

From time to time, however, the apex court has asked such states to review their reservation to bring it down below the 50% mark, Singh pointed out. According to him, the state government was either ill-advised or trying to mislead people.

Rajasthan Congress chief Sachin Pilot also said the Bills would not stand legal scrutiny. "The Constitution needs to be amended before granting reservation for economic backwardness. As the BJP has a majority in Parliament. it should walk the talk and carry out the amendments," he said.

"Otherwise it would just be an eyewash merely to placate vote banks."