The Gujarat high court’s decision to quash an ordinance providing 10 per cent quota for the economically backward among the unreserved category to pacify the agitating Patel community in the state has not surprised many as it was a legally suspect move right from the beginning.
A bench headed by chief justice R Subhash Reddy declared the May 1 ordinance “inappropriate and unconstitutional” for proving reservation beyond the 50% ceiling fixed by the Supreme Court.
It rejected the Gujarat government’s argument that the 10% additional quota for economically backward was a classification under the general category and not the reserved category.
All upper caste families with annual income of less than Rs six lakh were to benefit from the ordinance. But the 10% additional quota for economically backward was in addition to the existing 49% reservation for Other Backward Classes, Scheduled Castes and Scheduled Tribes in the state.
While upholding the VP Singh government’s decision to give reservation to OBCs in government jobs, the Supreme Court in 1992 in Indra Sawhney vs Union of India – popularly known as the Mandal case – ruled that reservation can’t exceed 50 per cent.
Tamil Nadu does have 69 per cent reservation in government jobs but that is due to the fact that it’s been placed in the Ninth Schedule of the Constitution that protects laws from judicial scrutiny. A challenge Tamil Nadu law is pending in the SC.
But even if the Gujarat government’s quota law is placed in the Ninth Schedule it will be vulnerable to a legal challenge.
In January 2007, a nine-judge Constitution Bench ruled in IR Coelho versus State of Tamil Nadu that laws placed in the ninth schedule did not enjoy a blanket protection from judicial scrutiny.
The SC laid down a two-fold test to examine the validity of a law placed in the Ninth Schedule. First, it has to be examined whether the law in question violates any fundamental right or not. And if yes, whether the violation also damages or destroys the basic structure of the Constitution. If the answer to both the questions is in the affirmative, then only a law placed in the Ninth Schedule can be declared unconstitutional.
The matter is bound to reach the SC which will judge its validity on the basis of tests laid down in the IR Coelho case.