Congress and Hardik Patel of Patidar Anamat Andolan Samiti (PAAS), which has so far led the campaign for reservation, have struck a deal to "ensure" the Patidars get reservation if the former comes to power in Gujarat.
Gujarat election 2017: Since 2015, some sections of Patidar community in Gujarat are up in arms against the ruling BJP, demanding reservation in government jobs and educational institutions under the OBC quota, or at par with the OBCs. What initially appeared as an organic movement, rising from the ground, has now metamorphosed into a political tool that the Congress party is trying to use to make a comeback to power in the state after over two decades. Congress and Hardik Patel of Patidar Anamat Andolan Samiti (PAAS), which has so far led the campaign for quota, have struck a deal to “ensure” the Patidars get reservation if the former comes to power in Gujarat. The declaration by Congress and Patel has baffled experts and critics, and not just for political reasons, but legal as well.
Let us first take a look at the legal aspect of this issue. There is a Supreme Court-imposed 50 per cent cap on reservations in India. Any attempt by various state governments to breach the cap have been struck down by the top court over the years. Though the apex court holds that states should not cross the 50% quota limit, it is not impossible under the Constitutional scheme of things. But there is a catch: It will need to pass the scrutiny of Parliament, where BJP is enjoying sunshine days at present, not the Congress.
The 50 per cent ceiling can be theoretically breached by showing “exceptional circumstances” or through a Constitutional amendment to put the quota law in the 9th Schedule. It happened in the case of Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of appointments or posts in Services under the State) Act, 1993. The said act of the state legislature introduced 69 per cent reservation. Through the 76th Constitution Amendment Act, 1994, the Tamil Nadu quota law was put in the 9th Schedule that protects the state’s law under Article 318 of the Constitution and supersedes the top court’s 50 per cent cap. However, a final judgment by the Supreme Court on whether the Tamil Nadu Act violates Constitution or not is still awaited.
Last year, BJP government in Gujarat tried to woo Patidars by providing 10 per cent quota to the community through an ordinance. However, it was struck down by the Gujarat High Court, which held the move as “illegal” and “unconstitutional”. This means, the Congress also can’t try giving reservation to Patidars through an ordinance, even if it wins the polls.
Recently, PAAS leader Hardik Patel said the Congress would frame a new law under provisions of Article 46 and Article 31 (C) of the Constitution to provide quota benefits to Patels. Here is what both articles say (Source – India Kanoon):
Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections: The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation
Article 31 (C)
Saving of laws giving effect to certain directive principles Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent Right to Constitutional Remedies.
Three questions are important here:
- Is it legally tenable to have separate quota for Patidars, outside or within the current 50 per cent cap on reservations?
- Can a law be framed under Article 46 read with Article 31 (C) to have reservation for Patidars?
- Can reservation for Patidars, parallel to OBCs, be provided?
FE Online discussed with some senior lawyers to find answers to the above questions.
Narender Hooda, Sr. Advocate, explained how reservation can be provided to a community, or caste under the Constitutional scheme.
“Reservation in service can be provided in terms of Article 16 of the constitution in favour of socially ‘backward class’ of citizens, who are not adequately represented in service. The backward class of citizens, in whose favour the Constitution permits affirmative action via protective discrimination, are homogeneous class in itself. There is no provision in the Constitution of India which enables any legislature to provide for classification within the class of backward citizens clubbed together for providing reservation.
“Article 14 of the Constitution permits classification, but not the class legislation. Before a classification for providing such benefits is permitted the enactment has to pass three-dimensional test. First, there must be a lawful object for the proposed classification. Secondly, the classification must be based on intelligible differentia and thirdly, the intelligible differentia must have rational nexus with the object sought to be achieved.The separate classification/quota for reservation in favour of Patidars does not seem to stand the above test for a valid classification,” he said.
Hooda further said that no new law can be framed for providing reservation under Article 46 read with Article 31 (C) which does not satisfy the requirement of Article 16 of the Constitution.
“No law can be framed providing for reservation in employment or admissions into educational institutions under article 46 read with article 31(C) which does not satisfy the requirement of Article 16 of the Constitution. No reservation can be provided in favour of a particular caste in furtherance of Article 46 of the constitution, which is an enabling provision for promoting educational and economic interests of the weaker sections of the people. Article 46 does not pertain to socially backward sections of the society. No reservation can be provided in favour of educationally and economically weaker sections of the society unless such backwardness is coupled with social backwardness.
“Social backwardness is the sine qua non for providing reservation. Similarly, no law providing for reservation can be enacted in pursuance to article 31(C) of the constitution which flies in the face of the requirement under article 16. A law intending to implement Directive Principles cannot be sustained unless it passes Constitutional master of Article 16. Declaration made by the legislature that an Act is intended to implement Directive Principles is not immune from judicial scrutiny.
“Court can always examine whether the declaration is a mere cloak to seek protection under article 31 (C) of the Constitution. Equality of opportunity in matters of public employment is a fundamental right. However, an exception has been provided for protective discrimination in favour of the backward class of citizens, who are not adequately represented in the service. Before providing for such reservation the government is Constitutionally mandated to collect quantifiable data by exhaustive surveys to reach an objective conclusion that a particular caste is socially backward and its members are not adequately represented in the services under the State.”
Hooda added, “The conditions precedent for providing reservation in favour of a caste cannot be done away with by hiding behind the declaration under Article 31 (C) and labeling the enactment to be one for promoting educational and economic interest of weaker sections of the society under article 46 of the Constitution.”
Mahalakshmi Pavani, Senior Advocate, who had got the Nirbhaya case lawyers to apologize for their comments on India’s daughter and had earlier been the president of Supreme Court Women Lawyer’s Association, shared her insights with FE Online as follows:
“The matter is pending and will be considered before a Constitution Bench. There will be Class reservations based on economic and social backwardness, not religion. There are methods to evaluate the backwardness based on data that is being collected. The Parliament can bring Constitutional amendment and bring them under the Ninth Schedule which still can be challenged. Reservations for Minority can be done by the state, provided it is established they are backward. In Gujarat, this is a new Congress strategy for votes and to convey ‘we tried” but it is ultimately for the Parliament to make the Amendment.”
Now the political aspect of the Patidar reservation issue. And it does not need a detailed inquiry for a simple reason: Any new act of providing quota to a caste group cannot be just seen as a state-centric issue. It can have repercussions across the country.
Including a whole new caste, that too the one which is widely seen as a financially well-off community across the country, in the OBC category, or at par with it, for giving them reservation benefits can potentially trigger widespread protests all over India from similar castes who, like Patidars of Gujarat, continue to be on top of socio-economic hierarchy but also identify themselves as victims of the reservation system. No political party at present can muster the courage to trigger such protests. It will suicidal, for India itself.