<p>In an unprecedented move, the Rajasthan Legislative Assembly passed two bills granting 5 per cent quota to Gujjar (constituting 7 per cent of the state population)-led special backward classes (SBC) and 14 per cent to economically backward classes (EBCs) in public sector jobs and admissions.<br /><br /></p>.<p>The reservation limit of up to 49 per cent therefore stands stretched to 68 per cet. Interestingly, the government has even sought to place these two bills under the 9th Schedule of the constitution intending to make it immune to judicial review. In I R Coelho [2007] it was held that any legislation under 9th Schedule can be challenged only if it tends to violate the basic structure of the constitution. Colonially, the Criminal Tribes Act, 1871 notified Gujjars as ‘criminal by birth’. <br /><br />Our founding fathers and mothers did not deem it fit to add Gujjars in either SC or ST list. The 1871 Act was also repealed. Articles 15 and 16 provided the basic framework for matters of reservation in education and government jobs. In 1951, in the Champakam Dorairajan case, the Government Order creating ineligibility based on one’s caste was struck down. Immediately, the 1st Amendment was bought to insert Art 15(4) which authorised states to make special provisions for advancement of ‘socially and educationally backward classes of citizens’ (SEBC). <br /><br /> In 1955, the first Backward Classes Commission headed by Kaka Kalelkar submitted its report suggesting that factors such as traditional occupation and profession etc have to be taken into account to classify a community as a ‘backward class’. <br />This report was never implemented and in 1961, the Union government wrote to all states that ‘economic tests’ should be applied for classification of classes rather than ‘castes test’. In M R Balaji v State of Mysore [1963], the Supreme Court held that Article 15(4) carves out only an exception to Article 15(1) and that caste could not be the sole and dominant test for the purpose of identifying SEBC. It was also held that while the exact percentage may vary, it could not cross the 50 per cent limit. In N M Thomas case [1976], a cap of 50 per cent on total reservation in appointments was again upheld.In 1979, the Mandal Commission was formed under Article 340 to determine the criteria for defining SEBCs. It suggested caste as the ground of bifurcating classes.<br /><br /> Neither Indira Gandhi nor Rajiv Gandhi implemented this report when they were prime ministers. The V P Singh-led government in 1989 resurrected the report and announced 27 per cent quota for OBCs. Protests followed, immolation of Rajeev Goswami happened but merit got buried. <br />Then prime minister Narasimha Rao, in 1991, provided an additional 10 per cent reservation for other economically backward sections of society not already covered. In Indira Sawhney Case [1992], this was approved by the Supreme Court by providing for exclusion of ‘creamy layer’. Subsequently, Articles 16(4A) and 16(4B) were added for reservations in promotions which were approved in Nagaraj [2006]. Recently, in Ram Singh, the Supreme Court in a reasoned judgment held that similarly placed Jats cannot be treated as backward class.<br />Violence route<br /><br />The Gujjars have remained reserved under the OBC category since 1990. In 2006, they demanded reclassification as Scheduled Tribes. As logically no claim stood firm, the alternative route of violence was adopted causing huge revenue loss to the public exchequer. Consequently, the Rajasthan government set up the Justice Chopra Committee which outrightly rejected the claim of ST status. The High Level Committee headed by Ramdas Aggarwal offered an economic package of Rs 282 crore which was rejected by the Gujjar leaders. After violent clashes with the Meena community (ST) the demand was shifted to 5 per cent separate reservation. <br />The issue is pending in the Rajasthan High Court and in 2007, the Supreme Court had taken suo motu cognizance of the violence caused and law and order disruptions. Conclusively, the two bills are unconstitutional on the following grounds: It is violative of Article 14 as Gujjars cannot be treated as a separate class within the SEBC class [State of UP v Committee of Management, 2010], secondly, there is no rational nexus to be achieved and thirdly, it takes away the shield of ‘equal protection of laws’ and ‘right to equal treatment’. <br /><br /> Further, it violates the 50 per cent ceiling cap as has been time and again held and confirmed by the Supreme Court. Lastly, under Article 16(4) one particular community cannot be whimsically be picked up for vote bank politics and granted reservation. Grant of special quota to a community which sought it violently and at a barrel’s tip crafts a terribly bad precedent as it will set on fire a chain reaction opening a pandora’s box for identically placed claims.<br /> They may include those of Kurmis in Bihar and Patidars in Gujarat. In Rajasthan itself, communities like Jats, Ahirs, Charans and Bishnois are similarly placed to Gujjars. Not only it is a land owning and politically organised caste but also has been historically alleged to commit atrocities against dalits. It will be the saddest day in the history of democratic India if each caste is gradually allocated a fixed percentage in reservation in admissions and jobs. The enactments will be examined by the courts after governor’s assent. Let us hope wisdom prevails. Till then, fingers crossed.<br /><br /><em>(The writer is Advocate, Supreme Court)</em></p>
<p>In an unprecedented move, the Rajasthan Legislative Assembly passed two bills granting 5 per cent quota to Gujjar (constituting 7 per cent of the state population)-led special backward classes (SBC) and 14 per cent to economically backward classes (EBCs) in public sector jobs and admissions.<br /><br /></p>.<p>The reservation limit of up to 49 per cent therefore stands stretched to 68 per cet. Interestingly, the government has even sought to place these two bills under the 9th Schedule of the constitution intending to make it immune to judicial review. In I R Coelho [2007] it was held that any legislation under 9th Schedule can be challenged only if it tends to violate the basic structure of the constitution. Colonially, the Criminal Tribes Act, 1871 notified Gujjars as ‘criminal by birth’. <br /><br />Our founding fathers and mothers did not deem it fit to add Gujjars in either SC or ST list. The 1871 Act was also repealed. Articles 15 and 16 provided the basic framework for matters of reservation in education and government jobs. In 1951, in the Champakam Dorairajan case, the Government Order creating ineligibility based on one’s caste was struck down. Immediately, the 1st Amendment was bought to insert Art 15(4) which authorised states to make special provisions for advancement of ‘socially and educationally backward classes of citizens’ (SEBC). <br /><br /> In 1955, the first Backward Classes Commission headed by Kaka Kalelkar submitted its report suggesting that factors such as traditional occupation and profession etc have to be taken into account to classify a community as a ‘backward class’. <br />This report was never implemented and in 1961, the Union government wrote to all states that ‘economic tests’ should be applied for classification of classes rather than ‘castes test’. In M R Balaji v State of Mysore [1963], the Supreme Court held that Article 15(4) carves out only an exception to Article 15(1) and that caste could not be the sole and dominant test for the purpose of identifying SEBC. It was also held that while the exact percentage may vary, it could not cross the 50 per cent limit. In N M Thomas case [1976], a cap of 50 per cent on total reservation in appointments was again upheld.In 1979, the Mandal Commission was formed under Article 340 to determine the criteria for defining SEBCs. It suggested caste as the ground of bifurcating classes.<br /><br /> Neither Indira Gandhi nor Rajiv Gandhi implemented this report when they were prime ministers. The V P Singh-led government in 1989 resurrected the report and announced 27 per cent quota for OBCs. Protests followed, immolation of Rajeev Goswami happened but merit got buried. <br />Then prime minister Narasimha Rao, in 1991, provided an additional 10 per cent reservation for other economically backward sections of society not already covered. In Indira Sawhney Case [1992], this was approved by the Supreme Court by providing for exclusion of ‘creamy layer’. Subsequently, Articles 16(4A) and 16(4B) were added for reservations in promotions which were approved in Nagaraj [2006]. Recently, in Ram Singh, the Supreme Court in a reasoned judgment held that similarly placed Jats cannot be treated as backward class.<br />Violence route<br /><br />The Gujjars have remained reserved under the OBC category since 1990. In 2006, they demanded reclassification as Scheduled Tribes. As logically no claim stood firm, the alternative route of violence was adopted causing huge revenue loss to the public exchequer. Consequently, the Rajasthan government set up the Justice Chopra Committee which outrightly rejected the claim of ST status. The High Level Committee headed by Ramdas Aggarwal offered an economic package of Rs 282 crore which was rejected by the Gujjar leaders. After violent clashes with the Meena community (ST) the demand was shifted to 5 per cent separate reservation. <br />The issue is pending in the Rajasthan High Court and in 2007, the Supreme Court had taken suo motu cognizance of the violence caused and law and order disruptions. Conclusively, the two bills are unconstitutional on the following grounds: It is violative of Article 14 as Gujjars cannot be treated as a separate class within the SEBC class [State of UP v Committee of Management, 2010], secondly, there is no rational nexus to be achieved and thirdly, it takes away the shield of ‘equal protection of laws’ and ‘right to equal treatment’. <br /><br /> Further, it violates the 50 per cent ceiling cap as has been time and again held and confirmed by the Supreme Court. Lastly, under Article 16(4) one particular community cannot be whimsically be picked up for vote bank politics and granted reservation. Grant of special quota to a community which sought it violently and at a barrel’s tip crafts a terribly bad precedent as it will set on fire a chain reaction opening a pandora’s box for identically placed claims.<br /> They may include those of Kurmis in Bihar and Patidars in Gujarat. In Rajasthan itself, communities like Jats, Ahirs, Charans and Bishnois are similarly placed to Gujjars. Not only it is a land owning and politically organised caste but also has been historically alleged to commit atrocities against dalits. It will be the saddest day in the history of democratic India if each caste is gradually allocated a fixed percentage in reservation in admissions and jobs. The enactments will be examined by the courts after governor’s assent. Let us hope wisdom prevails. Till then, fingers crossed.<br /><br /><em>(The writer is Advocate, Supreme Court)</em></p>
