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Alliance with Congress PAAS-ed, but can reservation to Patidars be implemented?

By Vicky

The Congress made a promise to the Hardik Patel led PAAS that it had worked out a formula to give reservation to Patidars. In theory, it may be possible to claim that the 50 percent ceiling would be breached, but the question is whether this is possible in reality.

Patidar Anamat Andolan Samiti (PAAS) leader Hardik Patel

Let us take a look at some points below:

  • The capping of reservations in India is governed by a 1992 Supreme Court verdict in the matter. The quota can be reviewed if data shows that the OBC/SC/STs make up the overwhelming majority of the population,: Legal Expert
  • Quota should not exceed 50 %: Supreme Court
  • 1992, Supreme Court judgment in the Indira Sawhney case (Mandal case) prescribing a 50% ceiling.
  • "It is theoretically possible to cross the 50% limit, either by showing exceptional circumstances or by amending the Constitution to put the Gujarat reservation law in the 9th Schedule (like the Tamil Nadu law).
  • However, it is still subject to the Supreme Court's finding as to whether breaching the 50% limit on reservation is a violation of the basic structure of the Constitution or not,"
  • A law granting reservations to Patels will stand scrutiny in the Courts simply because as it stands, there is no material to show Patels are educationally and socially backward.
  • Furthermore, reservation on purely economic grounds is not permitted under the Constitution. Unless both these change, Patels will not get reservations in government jobs and education.

The Tamil Nadu story:

Tamil Nadu is the only state in India which has over 50% reservations in Educational Institutions, despite the Supreme Court order.

And they managed it back in 1994 by getting the Central government to amend Schedule 9 of the Constitution. Schedule 9 is a list of laws that State Governments have brought in that are exempt from any judicial review - which means that Tamil Nadu's 69% quota for backward classes cannot be challenged by anyone in any court of law in India.

But unlike Tamil Nadu's case in 1994, Siddaramiah or even Telangana CM KCR who wants to bring 12% reservation for Muslims and STs, do not have an approving government at the Centre.

The Bill on Reservation:

The Tamil Nadu Government requested the Government of India on 22nd July 1994 that the aforementioned Tamil Nadu Act 45 of 1994 be included in the Ninth Schedule to the Constitution of India for the reasons given below:

"The said Act attracts article 31C of the Constitution, as falling within the purview of clauses (b) and (c) of article 39 and articles 38 and 46 of the Constitution-vide section 2 of the Act. The Act has been passed relying on the directive principles of State Policy enshrined in Part IV of the Constitution and in particular, articles 38, 39 (b) and (c) and 46 of the Constitution. As the Act is to give effect to the directive principles of State Policy contained, inter alia, in article 39(b) and (c), the said Act will get the protection of article 31C of the Constitution and therefore, cannot be challenged under articles 14 and 19 of the Constitution, with reference to which article 14, the reservation exceeding 50 percent. has been struck down by the Supreme Court. Now it has been decided to address the Government of India for including the Act in the Ninth Schedule to the Constitution, so that the law cannot be challenged as violative of any of the fundamental rights contained in Part III of the Constitution including articles 15 and 16, and gets protection under article 31B of the Constitution."

The 76th Amendment to the Constitution, 31st August 1994:

An Act further to amend the Constitution of India.

Be it enacted by Parliament in the Forty-fifth Year of the Republic of India as follows:-

  • Short title.-This Act may be called the Constitution (Seventy-sixth Amendment) Act, 1994.
  • Amendment of the Ninth Schedule.-In the Ninth Schedule to the Constitution, after entry 257 and before the Explanation, the following entry shall be inserted, namely:
  • "257A. The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institution and of Appointments or Posts in the Services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994)."

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