Editor's note: The following is the first part of a series relating to reservations across the country ahead of the crucial Gujarat Assembly election.
Here is a fictional example of Lallu and Mohan, which the Mandal Commission, in the report it submitted in 1980, reeled off to say why Other Backward Classes (OBCs) must have reservations:
Lallu is a poor village boy who comes from an illiterate family belonging to a backward class. He studies at the village school where standards are pathetic. On the other hand, Mohan belongs to an educated, well-off family. Studying at a city public school, Mohan gets help at home and can use television, radio and the magazines to acquire knowledge. Although both boys possess the same level of intelligence, Lallu can never compete with Mohan in any open competition because of the environmental disadvantages he suffers. So boys like Lallu must have reservations.
Mandal was neither the first nor the last to bandy about examples like these to argue in favour of reservations and debunk those who say merit should be the sole criterion in jobs and academic admissions.
And Gujarat’s quota warrior Hardik Patel would like us to believe that his land-owning Patidar community is packed with helpless boys like Lallus and that reservations must protect them against usurpers like Mohans. It is hardly of any concern to Hardik that extending reservations to Patidars means crossing the 50 percent ceiling recommended by Supreme Court for caste quotas (total for Scheduled Castes/Tribes and OBCs).
And it’s also hardly of any bother to the Congress that has promised reservations for Hardik’s caste in return for backing from his Patidar Anamat Andolan Samiti (Paas) in this month’s Assembly election in Gujarat. Desperate to defeat Prime Minister Narendra Modi’s BJP in his home state, Congress has apparently told Patel that, if it won Gujarat, it would ensure reservations for Patidars in a way it wouldn’t fall afoul of Supreme Court.
Past verdicts of the Supreme Court as well as various high courts, however, make it evident that the Congress is fooling Hardik. Or possibly, Hardik, too naive to understand the legal hassles of raising reservation levels, is fooling himself. Or he is fooling his community.
Even as Congress leaders and Hardik live in a fool’s paradise, beating tambourines and singing paeans to each other, their so-called deal is getting the adrenaline of backward class reservations going in other states.
The latest state to join the mad race for placating OBCs is Andhra Pradesh, where Chief Minister Chandrababu Naidu on Saturday extended five percent reservations to the Kapu community, taking the total of caste quotas in his state to 55 per cent, which is above the SC ceiling.
In recent weeks, reservation fever gripped the Karnataka and Telangana chief ministers as well. And the Chief Ministers of Maharashtra, Rajasthan and Haryana too have reasons to watch keenly what’s going on between the Congress and Hardik. In all these states, the governments want to expand reservations beyond the SC’s top limit and get away with it. They think that if Gujarat can swing it somehow, they can too.
The farcical nature of the Gujarat deal is not stopping other chief ministers from dreaming their own pipe dreams.
Gamble by Naidu, KCR and Siddaramaiah
In Andhra Pradesh, where elections to the Assembly are slated for 2019, Naidu’s Telugu Desam government will send the new bill to extend reservations for Kapus to the state governor who, in turn, will send it to the Centre. Then you could depend on Naidu — an ally of the BJP — to begin putting pressure on the Centre to place the new law in the Constitution’s Ninth Schedule to save it from the wrath, if any, of the Supreme Court.
Laws in the Ninth Schedule are supposedly beyond judicial review.
And with elections to the Karnataka Assembly only five months away, Siddaramaiah says he too will raise the total reservations to 70 percent so that more sub-castes of SCs, STs and OBCs could benefit. Having first spoken about it last year, he now repeats it with new vigour.
And in Telangana, Chief Minister K Chandrasekhar Rao wants to hike reservations from 50 percent to 60 percent to help SCs, STs and backward Muslims. Siddaramaiah and Rao too can do with the legal immunity that they believe the Ninth Schedule immunity will offer to their respective moves.
Mahrashtra’s move to give 16 percent reservation for Marathas in 2014 and Haryana’s law to give Jats (and five other castes) a 10-percent quota in 2016 were stayed by their high courts and the issue in both states is before their respective backward classes commissions. Attempts by Rajasthan to extend reservations to Gujjars failed thrice — the latest being only last month when the Supreme Court ruled that total reservations must not cross 50 per cent.
If these three states have their own way, the reservations will have gone up to 73 percent in Maharashtra (along with five percent for some Muslim sub-castes) 67 percent in Haryana and 54 percent in Rajasthan.
Why the Gujarat deal is a chimera
While legal luminary and Congress leader Kapil Sibal, who brokered the deal with Hardik, did not disclose its details, the 24-year-old Patidar leader claimed that it would be carried out under Articles 31B and 46 of the Constitution.
Taking recourse to Article 31B means passing a law to raise reservation level to include Patidars and then parking that legislation in the Constitution’s Ninth Schedule where it is presumed to be safe from judicial hurdles. In theory this can happen, but there are three big Ifs:
It can only happen
1) if the Congress wins Gujarat elections to pass a bill that will bless Patidars with reservations;
2) if the Modi government then agrees to keep that law in the Ninth Schedule and
3) if the Supreme Court agrees that such a law in Ninth Schedule is really beyond a judicial review.
A tall order indeed.
And using Article 46, which is part of the directive principles of the Constitution, is no less risky legally. Court verdicts in the past frowned on the misuse of this article to extend reservations (more on this in the second part of the series).
Whichever constitutional provision is used, the total percentage of reservation is bound to cross the SC’s upper limit. That’s because states are bent upon expanding the quota levels instead of letting new communities share the existing concessions and ruffle those already enjoying the benefits. At least two verdicts of the SC in the past said the 50 percent ceiling could be breached in extraordinary circumstances to extend reservations to a communities that are abysmally backward. But beginning with Gujarat’s Patidars, most of the castes that the states want to placate fail to qualify for the SC’s exceptional circumstances.
So it’s just not enough to say that a caste is packed with Mandal’s Lallus to milk the reservation cow. Congress knows. Hardik pretends he doesn’t.
Read Part II of the series here: States challenging SC's 50% reservation ceiling will turn the Ninth Schedule into a 'constitutional dustbin'
The author tweets @sprasadindia
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Updated Date: Dec 05, 2017 12:06:09 IST