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All politics, no legality

Granting a 5 pc quota for Gujjars and two other backward communities and a 14 per cent quota for the poor among forward castes and sect raises more questions than it answers, reports Satya Prakash.
By Satya Prakash | Hindustan Times, New Delhi
UPDATED ON JUN 20, 2008 02:06 AM IST

With Assembly polls round the corner, Rajasthan Chief Minister Vasundhara Raje’s announcement on Wednesday granting a 5 per cent quota for Gujjars and two other backward communities and a 14 per cent quota for the poor among forward castes and sect raises more questions than it answers. This is because it breaches the 50 per cent limit on reservations fixed by the Supreme Court.

Till now Rajasthan had quotas to the extent of 49 per cent — Scheduled Tribes (12 per cent), Scheduled Castes (16) and Other Backward Classes (21) in the state. With the latest additions, the percentage has now gone up to 68, one of the highest in the country.

But the moot point is whether Rajasthan’s decision will withstand judicial scrutiny.

Right from the 1993 Mandal case verdict, the Supreme Court has been reiterating that total reservation cannot exceed 50 per cent as it would result in reverse discrimination.

A Constitution Bench in October 2006 had ordered a 50 per cent ceiling on quotas, saying, “A numerical benchmark is the surest immunity against charges of discrimination. If the extent of reservation goes beyond the cut-off point of 50 per cent, then it results in reverse discrimination.”

In July last year, the Supreme Court dismissed an Orissa government petition challenging a state high court decision restraining it from providing 66.75 per cent reservation in government jobs on the ground that it exceeded the 50 per cent limit.

However, Tamil Nadu provides 69 per cent quotas in jobs and education but the law, placed under the protective umbrella of the Ninth Schedule, is already under challenge before the Supreme Court.

Earlier, the legal position was that once a law is placed in the Ninth Schedule, courts couldn’t examine them. But last year, a nine-judge Constitution Bench ruled that such laws were open to judicial scrutiny.

The court asserted that it has the right to judge the validity of any law — including the Acts placed in the Ninth Schedule of the Constitution by legislatures to make them immune to challenge for violation of fundamental rights.

What is important is that the bench for the first time declared that Articles 15 and 16 of the Constitution (on reservation in educational institutions and government jobs, respectively) were part of the “basic structure”. This will invite a challenge to the state’s decision.

One may understand the political compulsions of the Raje government in announcing the separate quotas ignoring the 50 per cent ceiling but the decision raises serious questions on its intentions.

Once the decision is formally notified, anti-quota groups are bound to challenge it in courts. And then the law will take its own course. By the time the legal battle is decided, the Assembly elections would be over.

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