The forthcoming election for State Legislative Assembly to be held in Gujarat has generated hectic heat in the interpretation of ceiling of reservation to the Backward Classes which includes the Scheduled Castes and the Scheduled Tribes. The ‘reservation’ has become axial in the formation of electoral alliances between the political parties. Before Patidar (Patel) community raised their demand for reservation in Gujarat, Gurjars in Rajasthan, Jats in Haryana, Marathas in Maharashtra had already intensified their claims.
The bone of contention in accepting the demand and acting on it either by the ruling party or the opposition side revolves on the ceiling for the total reservation of 50 per cent. Let the eligibility of the reservation claiming communities and their inclusion in the reservation list be decided by the respective bodies of authority! Who has to decide on the ceiling for the total reservation?
Is the ceiling of 50 per cent is used as a shield by the anti-reservationists who are on the ruling side to block the reservation to the desired underprivileged sections to the desired extent, which is explicitly emphasized, ‘adequately’ in the Constitution? The 50 per cent ceiling on reservation has its origin only as ‘obiter dicta’ and not as a part of the verdict of the apex court in M.R.Balaji vs. State of Karnataka (1963). Besides that, ‘obiter dicta’ was related to reservation applied in educational system. The major argument against raising total reservation above 50 per cent is claimed in the verdict the NINE judge Constitutional Bench, in Indra Shawney case in 1994. The anti-reservation lobbies conveniently forget the following portion in the Indra Shawney case judgment.
“While 50 per cent shall be the rule, it is necessary not to put out of consideration certain extra ordinary situations inherent in the great diversity of the country and the people.”
The said part of verdict prescribes that the ‘holy’ ceiling of 50 per cent may get exceeded in case of necessity as per the societal reality. The parrot lingua franca of anti-reservationists on their emphasis of ceiling of reservation becomes meaningless.
Besides, it is quoted frequently that the Supreme Court has decided for the ceiling of 50 per cent. Where from do the Supreme Court derive its deciding power? From the supreme law of the land i.e. Indian Constitution!
Article 16(4) of the Constitution says,
“Nothing in this article shall prevent the state from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the State.”
Does any English lexicon define the word, ‘adequately’ as ‘not exceeding 50 per cent’? India is not a single but pluralistic country and aptly proclaimed in the Constitution as ‘Union of States’. The socio, economic and cultural aspects of each state differ from the rest. Is it not the responsibility of each Government, either the Centre or the State, formed by the electoral mandate of the people to translate the term ‘adequately’ into action on reservation benefits to the desired sections?
Besides, the Preamble of the Constitution says for the dispensation of social justice along with economic and political. Formulating reservation policy and implementing it is the manifestation of dispensation and ensuring of social justice to the desired citizens.
Reservation rights are part of the basic structure of the Constitution. Denial of it to the desired both in quantum and in quality under the garb of any ceiling is unconstitutional and anti social justice attempt.
The total reservation of 68 per cent both in education and employment is in vogue in Tamil Nadu since 1980 and 69 per cent later. When other States including the States ruled by the saffron party which is against reservation try to emulate the ‘Tamil Nadu Formula’ to enact legislation under Article 31(c), imbibing immunity to such legislation from the judicial review.
Let not the learned leader of BJP Mr. Arun Jaitely dig the grave of his party in the States like Maharashtra and Rajasthan where the respective State Governments ruled by BJP have brought legislation to provide reservation exceeding 50 per cent! If Jaitley advocates the ceiling of 50 per cent, how could his party allow the respective BJP State Governments to enact such legislation? In the election field, there are many points to blame on the opponents and the alliance formation. Let him not drag the issue of ceiling on reservation which is akin to throwing stone while remaining inside the glass house!
