It has been widely reported in media that the eight-day-long Gujjars’ agitation demanding reservation for the community has ended after the Rajasthan government agreed to introduce a bill ensuring 5% quota for Gujjars outside the limit of 50% overall reservation in government-run institutions. Gujjars would be given reservation as ‘Specially Backward Classes’ under a separate bill. Moreover, Rajasthan Government has also reportedly agreed to bring a separate bill for 14% reservation to “Economically Backward Classes” beyond the 50% limit. It is reported that the state government would pass the bill in the cabinet and the state assembly and then send it for inclusion in the 9th Schedule to the Constitution to ensure that such reservations remain safe and protected from judicial scrutiny. However, I am of the considered opinion that the above proposal of Rajasthan Government is absolutely unconstitutional for the reasons mentioned below.
Presuming that, at present, reservations in Rajasthan are at 49%, if a separate reservation limit of 5% is introduced for the Gujjar community, as reported, the extent of reservations in Rajasthan will go up to 54%; and if another 14% reservation is provided to the economically backward classes, as reported, the total reservation will become approximately 68%. Thus, in either case, the extent of reservations will go beyond 50% which is the maximum permissible under the Constitution as interpreted by the Supreme Court.
Reservations cannot exceed 50%
Let me first point out that Article 15(4) and Article 16(4) of the Constitution are the basic provisions that deal with reservations and are reproduced below:
“15(4). Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
“16(4). 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.”
Let me now refer to some judgments of the Supreme Court which mandate that reservations cannot generally exceed 50%.
In the case of M.R. Balaji v. State of Mysore, AIR 1963 SC 649 : 1963 Supp (1) SCR 439, a 5-judge Constitution bench of the Supreme Court held as under:
“31. …if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Art. 15(4). It would be extremely unreasonable to assume that in enacting Art. 15(4) the Constitution intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored.”
“34. …If admission to professional and technical colleges is unduly liberalised it would be idle to contend that the quality of our graduates will not suffer. That is not to say that reservation should not be adopted; reservation should and must be adopted to advance the prospects of the weaker sections of society, but in providing for special measures in that behalf care should be taken not to exclude admission to higher educational centres to deserving and qualified candidates of other communities. A special provision contemplated by Art. 15(4) like reservation of posts and appointments contemplated by Art. 16(4) must be within reasonable limits. The interests of weaker sections of society which are a first charge on the States and the Centre have to be adjusted with the interests of the community as a whole. The adjustment of these competing claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the colleges, that clearly would be subverting the object of Art. 15(4) . In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50 per cent; how much less than 50 per cent would depend upon the relevant prevailing circumstances in each case. … In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Article 15(4) it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighed the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations. Therefore, we are satisfied that the reservation of 68% directed by the impugned order is plainly inconsistent with Art. 15(4).”
Thus, a limit of 50% was laid down for reservations in the context of Article 15(4) of the Constitution which allows the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
Likewise, in the case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 : AIR 1993 SC 47, a 9-judge Constitution bench of the Supreme Court (by a majority of 8-1 judges; with Chief Justice Kania, and Justices Venkatachaliah, Ahmadi, Jeevan Reddy, Thommen, Kuldip Singh, Sawant, Sahai, JJ., concurring, and only Justice Pandian taking a contrary view) similarly held that the reservations contemplated in clause (4) of Article 16 should not exceed 50%. The relevant observations in this case are as under:
“807. We must, however, point out that clause (4) speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. … It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant. Just as every power must be exercised reasonably and fairly, the power conferred by clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits — and what is more reasonable than to say that reservation under clause (4) shall not exceed 50% of the appointments or posts, barring certain extraordinary situations as explained hereinafter. …”
“808. It needs no emphasis to say that the principal aim of Articles 14 and 16 is equality and equality of opportunity and that clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision — though not an exception to clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the re-statements of the principle of equality enshrined in Article 14. The provision under Article 16(4) — conceived in the interest of certain sections of society — should be balanced against the guarantee of equality enshrined in clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr Ambedkar himself contemplated reservation being “confined to a minority of seats” (See his speech in Constituent Assembly, set out in para 693). No other member of the Constituent Assembly suggested otherwise. It is, thus, clear that reservation of a majority of seats was never envisaged by the Founding Fathers. Nor are we satisfied that the present context requires us to depart from that concept.
809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%.
810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in farflung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.”
Thus, a limit of 50% was laid down for reservations in the context of Article 16(4) of the Constitution which allows the State to make 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.
In view of these reasons, it is clear that the mandate of the Constitution, as interpreted by authoritative judgments of the Supreme Court is that reservations cannot exceed 50%. In that sense, the proposal of Rajasthan Government to go beyond the limit of 50%, while providing reservations to the Gujjar community is unconstitutional.
The Magic blackbox of the 9th Schedule to the Constitution
In respect of the reservation to be provided to the Gujjar community, the Rajasthan Government has further proposed to include the Bill (for providing reservations in excess of the permissible limit of 50%) in the Ninth Schedule to the Constitution so that it becomes safe from being declared as unconstitutional by way of judicial review. Let us now examine this issue.
Article 31-B was inserted in the Constitution by the First Amendment to the Constitution. The purpose of this article was to grant immunity or protection from judicial review to the Acts and Regulations that were put in the Ninth Schedule to the Constitution. It is reproduced as under:
“31B. Validation of certain Acts and Regulations.- Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.”
So, Ninth Schedule to the Constitution is like a magic blackbox which makes its contents invisible to judicial review and its contents shall always be considered to be valid even if they take away or abridge any fundamental right and even if judgment or order of any court declares them to be invalid. Thus, the Parliament can put any Act or Regulation in the Ninth Schedule to the Constitution and by a magic, such Act or Regulation will become immune from any judicial review and will always be considered to be valid merely because it has been put in the Ninth Schedule.
At this stage, it may be pointed out that in the famous case of Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461 : 1973 Supp SCR 1, a 13-judge bench of the Supreme Court has held that basic features or the basic structure of the Constitution cannot be repealed or abridged. So, a question arises what happens if an Act included in the Ninth Schedule affects the basic features of the Constitution, i.e., if it takes away or abridges any basic feature of the Constitution? How to resolve this conflict? This question was answered by a 9-judge bench of the Supreme Court in the case of I.R. Coelho v. State of T.N., (2007) 2 SCC 1 : AIR 2007 SC 861. In this case, the question related to the validity of the laws placed in the Ninth Schedule to the Constitution, in view of the provisions of article 31-B which provided protection to them. A 9-Judge Bench of the Supreme Court held unanimously that all amendments to the Constitution made on or after April 24, 1973 (i.e., the date on which the said Kesavananda Bharati case was decided) by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them; to put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure. The relevant extracts from this judgment are reproduced below:
“(i) A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of the law, whether by amendment of any article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.
(ii) The majority judgment in Kesavananda Bharati case read with Indira Gandhi case requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.
(iii) All amendments to the Constitution made on or after 24-4-1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.
(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by constitutional amendments shall be a matter of constitutional adjudication by examining the nature and extent of infraction of a fundamental right by a statute, sought to be constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the “rights test” and the “essence of the right” test taking the synoptic view of the articles in Part III as held in Indira Gandhi case. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such law(s) will not get the protection of the Ninth Schedule.”
Thus, the aforesaid decision in the case of I.R. Coelho now makes it unequivocally clear that inclusion of an Act in the Ninth Schedule to the Constitution will not protect such Act from judicial review and from being declared and unconstitutional or invalid law if it violates the basic structure of the Constitution. So, has the Rajasthan Government seen this judgment?
Right to equality is a fundamental right guaranteed under Article 14 of the Constitution and its specific manifestations are also found in Article 15 and Article 16. There is no doubt that right to equality is a basic feature of the Constitution. For example:
- Principle of equality has been declared as a basic feature of the Constitution [see: Kesavananda case (supra) – Reddy, J., para 1171. Also see, Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299; Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789; Indra Sawhney v. Union of India, AIR 2000 SC 498 (para 66, 67); M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : AIR 2003 SC 355; Secy., State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : AIR 2006 SC 1806; R.S. Garg v. State of U.P., (2006) 6 SCC 430 at p. 451 : AIR 2006 SC 2912; I.R. Coelho v. State of T.N., (2007) 2 SCC 1.]
- Likewise, Equality of status has also been declared as a basic feature of the Constitution [see: Githa Hariharan and another v. Reserve Bank of India and another, AIR 1999 SC 1149].
The aforesaid rule laid down by the Supreme Court to the effect that reservations cannot exceed 50%, has also been derived from the right to equality. Accordingly, even if the proposed Bill providing for reservations to the Gujjar community in excess of the maximum limit of 50% is included in the Ninth Schedule, it will still be not protected from judicial review and from being declared unconstitutional since it violates the fundamental right of equality which is a basic feature of the Constitution.
In view of these reasons, I am of the considered opinion that the proposal of the Rajasthan government to provide reservations to Gujjar community (5%) and also to the economically backward classes (14%) beyond the maximum permissible limit of 50%, is absolutely unconstitutional. However, if the Gujjar community is granted reservation benefits within the existing limits of less than 50% reservation, it may perhaps be valid, though even in such a case its validity can be examined on other criteria. In this regard, it is noteworthy that recently the Supreme Court had struck down provision of reservation to the Jat community.
[Note: The Author has written a book “Need to Amend a Constitution and Doctrine of Basic Features” (ISBN:978-81-8038-253-6), published in 2007 by the leading law publishers M/s Wadhwa & Company, in addition to two other books written by him. Some contents in this article have been taken from the said book.]