Yesterday, the Rajasthan Assembly passed two legislations aimed at providing reservation in educational institutions and government jobs to economically backward classes and special backward classes. These Bills are the Rajasthan Economically Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Bill, 2015, and the Rajasthan Special Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointments and Posts in Services under the State) Bill, 2015.
Among the special backward classes that stand to benefit from the legislations are politically-influential Gujjars, who have been demanding reservation since 2007.
While the state government had earlier issued an executive order, providing for five per cent reservation to Gujjars and four other special backward classes, the Bill passed by the Assembly yesterday is aimed at giving statutory backing to the decision.
Put together, the two sections – economically backward classes and the special backward classes – Banjara/Baldiya/Labana, Gadiya Lohar/Gadoliya, Gujjar/Gurjar, Raika/Rebari/Debasi and Gadariya/Gadri/Gayari – will take the total reservation upto 68 per cent, 18 per cent beyond the 50 per cent cut-off prescribed by the Supreme Court in the landmark Indra Sawhney judgment.
While the Rajasthan Assembly passed both the Bills by voice vote, there are adequate reasons to believe that the constitutionality of the fresh reservation could be put to test in the appropriate court in the near future.
To say that there are enough grounds for challenging the constitutional validity of the two laws either in the Rajasthan High Court or the Supreme Court would be stating the obvious.
Even though the Vasundhara Raje government in Rajasthan did the smart thing by citing the November 2012 report of the Rajasthan State Backward Classes Commission, which recommended reservation for Gujjars and other deprived backward classes, which were not beneficiaries of earlier reservation, it may have erred in dealing with a legally sensitive question in a very simplistic manner. It has also referred to Clause (4) of Article 15 of the Constitution, which allows the State to make any special provisions for the advancement of any socially and educationally Backward Classes of citizens to strengthen its case.
Incidentally, in its report, the Rajasthan State Backward Classes Commission had referred to the Indra Sawhney case, saying that “if a special case” was made out, reservation could be given “in excess of the 50 per cent”. “After analyzing quantifiable data and considering other indexes, the Commission has come to the conclusion that for advancement of these five castes/classes, viz. Gadiya Lohar, Rebari, Banjara, Gurjar and Gadariya, special case is made out to give them status of Special Backward Classes,” its report said.
Similarly, the state government cited another Commission – this one appointed to identify and examine the requirements of the economically backward classes of general categories not covered by the existing reservation available to the SCs, STs and Bcs – in its Bill to seek 14 per cent reservation for this section of people.
But, in doing so, the State Government may have gone beyond what was settled in M R Balaji versus Mysore and Indra Sawhney and many judgments before and after them. For one, the settled law is that reservation under Articles 15(4), cited by the Raje government in its Bill, “should not exceed 50 per cent” and that any reservation “beyond 50 per cent would liable to be struck down”. Also, the same judgment holds that no reservation can be made for any class other than backward class.
By taking the reserved quota to 68 per cent, Rajasthan has joined Tamil Nadu, which has 69 per cent reservation.
But, there is a reason why Tamil Nadu has been able to retain the reservation cut off at such a high level despite successive Supreme Court judgments and the Mandal Commission report. First, the state Assembly passed the Tamil Nadu Backward Classes, Scheduled Caste and Scheduled Tribes (Reservation of seats in educational institutions and appointments or posts in the service under the state) Act, 1993, to keep reservation at 69 per cent. The President gave his assent to the Bill on July 19, 1994.
Thereafter, in 1994, the 76th Constitution Amendment Bill was passed by both Houses of Parliament, with then President Shankar Dayal Sharma granting his assent on August 31,1994. As a result of this amendment to the Ninth Schedule of Constitution, the Tamil Nadu Backward Classes, Scheduled Caste and Scheduled Tribes (Reservation of seats in educational institutions and appointments or posts in the service under the state) Act, 1993, was included in the Constitution. However, even then, the issue of Tamil Nadu reservation cap being way over the 50 per cent cut-off remains a subject matter of litigation in the Supreme Court.
Attempts by other states to emulate Tami Nadu have not borne fruit, mainly because of lack of Constitutional backing.
Attempts by various states like Uttar Pradesh to bring in reservation in promotions have also met with judicial resistance. The landmark SC judgment in M Nagaraj and others versus Union of India categorically held that before providing for reservations “the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency”.
As for the Rajasthan law providing for reservation to economically-weaker sections, Indra Sawhney has categorically settled this issue. “Since the employment under the State is really conceived to serve the people (that it may also be a source of Livelihood is secondary) no such bar can be created. Any such bar would be inconsistent with the guarantee of equal opportunity held out by Clause (1) of Article 16,” the Bench ruled.
It remains to be see what justification, apart from the reports of the two Commissions, does Rajasthan government offer in case the fresh reservations are challenged before any court.