Smarting from the recent quota violence and arson, the Manohar Lal Khattar government in Haryana faces the arduous task of tabling a legally tenable legislation to provide reservation in jobs to Jats and four other castes in the coming budget session of assembly. The assembly session begins March 14.
10% special backward class quota stayed by high court
While the previous Congress government led by Bhupinder Singh Hooda had granted 10% reservation to Jats, Jat-Sikhs, Rors, Tyagis and Bishnois under the Special Backward Class (SBC) category on the recommendation of Haryana Backward Classes Commission (HBCC), the Punjab and Haryana High Court on July 27, 2015, stayed the same. This took the reservation to 57 % in the state which is legally indefensible.
“Undisputedly the impugned reservation in favour of five classes – Bishnoi, Jat, Jat Sikh, Ror and Tyagi residing in Haryana — has been made by Haryana government on the basis of report of Justice KC Gupta Commission. The said report was not accepted by the Supreme Court in its judgment where reservation of Jat community in the central list of other backward classes has been set aside,’’ the HC said in its order.
As promised during the violence, the Khattar government has decided to bring a quota Bill in the assembly after its recent proposal to double the existing 10% reservation in jobs and educational institutions for economically backward persons (EBP) in the general caste category, which includes Jats and four other castes.
The government also plans to increase the annual income ceiling from Rs 2.5 lakh to Rs 6 lakh to accommodate more persons under the EBP quota.
While the state assembly has the legislative competence to enact a legislation to grant reservation to Jats and four other castes, the challenge is to secure this legislation from legal pitfalls.
The reservation percentage in Haryana is already 57 % — Scheduled Castes (20%), Backward Classes (27 %) and EBP (10 %) — which is not legally acceptable in view of the November 1992 Supreme Court judgment in the landmark Indra Sawhney case.
The eight-member apex court bench had ruled: “Reservations contemplated under Article 16 (4) should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in great diversity of this country and the people. It might happen that in far-flung and remote areas, some relaxation in this strict rule may become imperative as the population on account of their being out of the main stream of national life and in view of conditions peculiar to them need to be treated in a different way. In doing so, extreme caution is to be exercised and a special case made out.”
Where is the justification?
Since the Supreme Court has trashed the recommendations of Haryana Backward Classes Commission headed by Justice KC Gupta (retd) and the National Commission for Backward Classes (NCBC) had rejected the demand to include the Jats in the OBC central list, the state government does not have a tangible justification in granting reservation to Jats event through the legislation route.
This position becomes pronounced in view of another Supreme Court judgment of October 2006 in M Nagaraj case.
A five-member bench of the apex court had ruled: “We reiterate that the 50% ceiling limit, the concept of creamy layer and compelling reasons namely backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 of Constitution would collapse… It is made clear that even if the state has compelling reasons, as stated above, it will have to see that its reservation provision does not lead to excessiveness so as to breach the 50% ceiling limit or obliterate the creamy layer or extend reservation indefinitely.”