Rajasthan’s Gujjar quota faces a legal challenge:
- A public interest litigation petition filed in the High Court here, challenges the quota Bill (5% reservation to Gujjars and 4 other nomadic communities in jobs and education in Rajasthan) on grounds of an “untenable basis” of proportionality of population.
Petitioner’s Point of contention:
- Gujjars agitation has breached the 50% ceiling on reservation set by the SC in the Indra Sawhney judgment.
- The proportion of Gujjars’ population should be looked as per the last Census instead of referring to the quantifiable data of backwardness in education and public employment.
- The actual compelling circumstances for providing the Quotas was not the need to uplift certain communities but it was the Gujjars agitation, which had held the entire State to ransom. Gujjars had blocked traffic on the Delhi-Mumbai railway tracks and on several highways for 9 days to press for their demands.
- The Rajasthan govt had passed the Rajasthan Backward Classes (Reservation of Seats in Educational Institutes in the State and of Appointments and Posts in Services under the State) Amendment Bill, 2019.
- The bill comes in the backdrop of two similar bills passed in 2015 and 2017 which were struck down by the Rajasthan High Court.
- The bill sought to provide 5% reservation to Gujjars, Banjaras, Gadia Lohars, Raikas and Gadaria.
- The communities were earlier provided 1% reservation under More Backward Classes (MBC).
- The bill increased the OBC reservation in Rajasthan from 21% to 26%.
- It has also increased the income limit for defining creamy layer in OBC from Rs. 2.5 lakh to Rs. 8 lakh/annum.
- In Rajasthan, Gujjars are currently eligible for reservations as an OBC community.
- They had in the mid- and late-2000s agitated for inclusion in the ST category, in keeping with the way they are classified in J&K and Himachal Pradesh.
- The Rajasthan govt had also passed a resolution requesting the Centre to include the bill in Schedule IX of the Indian Constitution.
- A law enacted and included in the Ninth Schedule gets protection under Article 31-B (validation of certain Acts and Regulations) and is not subject to judicial review.
- However, in 2007, the SC ruled that all laws including those in the Ninth Schedule would be open to judicial review if they violated the basic structure of the constitution.
The legislation, however, had been struck down in every one of the past 3 attempts by the Rajasthan High Court, which had ruled that the quota not only exceeded the 50% limit, but was also not supported by quantifiable data to prove backwardness.
Indra Sawhney Case
In the famous Mandal case (Indra Sawhney v. Union of India 1992), the scope and extent of Article 16(4), which provides for reservation of jobs in favour of backward classes, has been examined thoroughly by the Supreme Court.
Though the Court has rejected the additional reservation of 10% for poorer sections of higher castes, it upheld the constitutional validity of 27% reservation for the OBCs with certain conditions, viz,
- The advanced sections among the OBCs (the creamy layer) should be excluded from the list of beneficiaries of reservation.
- No reservation in promotions; reservation should be confined to initial appointments only. Any existing reservation in promotions can continue for five years only (i.e., upto 1997).
- The total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.
- The ‘carry forward rule’ in case of unfilled (backlog) vacancies is valid. But it should not violate 50% rule.
- As permanent statutory body should be established to examine complaints of over-inclusion and under-inclusion in the list of OBCs.
103rd Constitutional Amendment Act, 2018 “Economic Reservation In India” Highlights And Analysis
- The 103rd Amendment to the Constitution allows for a 10% quota for the economically backward among communities that do not enjoy any form of reservation. It breaches the 50% limit.
- The Constitutional (103rd Amendment) Act got the assent of President of India on 13th January, 2018.
- The bill was passed in Lok Sabha by 323 members voting in favor and 3 members against the bill.
- It was subsequently passed by Rajya Sabha with 165 members in the favor and only 7 members against the bill.
- The constitutionality of 103rd Amendment Act is under challenge.
- The constitutional challenge is conformity to the basic structure doctrine.
- So far, it has become an established principle that reservation shall have a cap of 50%.
- These stipulations first arose in M.R Balaji v. State of Mysore when court stated that reservation above 50% would imply dominance over section 16(1).
- The govt notification providing 10% reservation to weaker economic sections of society was struck down in Indra Sawhney v. UOI.
- These rulings never have been discarded in violation of Basic Structure Doctrine.
- Moreover, the amendment only provides reservation to the extent of 10%.
- However, the existing articles 15(4), 15(5) and 16(4) do not mention that reservation shall be 50% explicitly, by way of legislation.
- Consequently, any challenge pertaining to violation of basic structure does not seem to have a stand.
- A writ petition has been filed by Youth for Equality contending that 103rd amendment violates the basis structure doctrine.
- Many backward communities feel that reservation is segregating the society further.
- Many have voiced that it is being used to uplift one section of the society at the cost of another, which is not good.
- Since, many groups/communities are still economically poor, there should be equal opportunities for all.
- Newer reforms or laws must be framed by a govt to evaluate the impact on the development of under privileged.
- This development must be compared to the overall society.
- There is a need to re-evaluate the reservation system which should be based on the economic condition than by the caste lines.
- Calculation of the per capita income, poverty line must be standard forming the new policy for enforcing reservation and educational reforms.
- Finally, government must not submit to the violent protests and other forms of passive force commanded by the caste based group in the country.