The Rajasthan government’s move to give 5% quota to Gujjars and four other castes under special backward classes and 14% to economically backward classes has to cross many a legal hurdle before it can be implemented.
First, the additional 19% quota proposed in government jobs and education – for which the state assembly on Tuesday passed two controversial bills – is prima facie unconstitutional as it takes total reservation to 68%, much beyond the 50% ceiling fixed by the Supreme Court (SC).
It is for precisely this reason that the Vasundhara Raje government has said it would place the two bills passed by the assembly before Parliament to put them under the protective umbrella of the Ninth Schedule of the Constitution to save them from possible judicial challenges.
Second, the Ninth Schedule no more offers blanket protection to laws placed under it. In a historic verdict, a nine-judge constitution bench headed by the then CJI YK Sabharwal in January 2007 ruled that laws included in the Ninth Schedule were also open to judicial scrutiny.
While upholding the validity of Article 31-B of the Constitution – which empowers Parliament to place any law in the Ninth Schedule by a constitutional amendment – the SC said provisions of laws placed under the schedule would be open to judicial scrutiny on the grounds that they destroy or damage the basic structure of the Constitution.
It held that any law placed in the Ninth Schedule after April 24, 1973 (when the SC propounded the basic structure doctrine in the Kesavananda Bharti case) will be open to challenge.
After laying down the law, the SC had directed that petitions challenging various laws (including a Tamil Nadu law providing for 69% quota) protected by the Ninth Schedule be placed before a three-judge bench for adjudication. But verdicts in individual cases were still awaited.
Third, even if the Rajasthan quota laws are placed in the Ninth Schedule through a constitutional amendment, these will have to pass a twofold test as laid down by the SC in the 2007 verdict.
According to the apex court, it has to be seen whether the law in question violates any fundamental right. And if yes, it will have to be examined whether the violation of that particular fundamental right amounts to a violation of the basic structure of the Constitution as well.
The Rajasthan quota laws can still survive if the result of both or any of the two tests is in the negative.
But what makes things difficult for the Raje government is that the SC has expanded the ambit of the basic structure doctrine by placing Article 15 and Article 16 (quota in education and jobs, respectively) on a par with Article 14 (right to equality) and 21 (right to life and liberty), saying, “Fundamental rights are interconnected…”
Before these laws are tested in a constitutional court, they must be placed in the Ninth Schedule through a constitutional amendment; otherwise they will remain a non-starter.