Ahmedabad: Legal experts today said the quota promised by the Congress to Hardik Patel for his Patidar community in poll-bound Gujarat may not pass judicial muster due to the 50 per cent cap even as the BJP dubbed the deal as a “big joke” and “mutual deception”.

The promised reservation by the Congress if it comes to power can survive if the Supreme Court was to reconsider its 1992 landmark judgement fixing the ceiling.

The Supreme Court in its verdict in the Mandal Commission case had ruled that the total reservation for SC/ST and other backward classes or special categories should not exceed 50 per cent.

Hardik Patel

Hardik Patel, who is the leader of the Patidar Anamat Andolan Samiti (PAAS), on his part said the 50 per cent reservation cap set by the apex court, was just a “suggestion”. He claimed the reservation formula given by the Congress for his community will be over and above the 50 per cent quota for the SC, ST and OBCs.

Hardik said if the Congress comes to power, it will conduct a proper survey for providing reservation. The party will bring a Bill in the state Assembly and give reservation, he said.

Hardik said that Congress has agreed to give Patidars reservation that would be “parallel to OBCs under Article 46”. The article will be read with Article 31 C to bring in a Bill for non-reserved classes, he said. Congress leader Kapil Sibal, a senior lawyer, said it was a “well thought process.”

Article 46 allows the promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. But there exists no material to show Patels are educationally and socially backward. Besides, reservation on purely economic grounds is not permitted under the Constitution.

Girish Patel

“That 1992 judgement was not just a suggestion, it was a law laid down by the SC. We cannot cross that limit. Even if the survey about the backwardness of any community is conducted, the eligible community has to be included in the existing 50 per cent quota. There is no scope of additional quota,” said senior Gujarat High Court lawyer Girish Patel.

Krishnakant Vakharia

In the opinion of another advocate Krishnakant Vakharia, reservation can go beyond 50 per cent only if the Parliament amends the Constitution, or someone files an appeal in the Supreme Court against the 1992 judgement.

“We all abide by the interpretation of the Constitution done by the SC. In the the historical 1992 judgement, the SC interpreted the Constitution and said that 50 per cent cap is necessary to protect the principle of Right to Equality,” Vakharia said, adding, “If that limit is not there, that principle becomes meaningless.”

Vakharia said there are two possible ways to increase the cap.

“Either the Lok Sabha or Rajya Sabha amends the Constitution with two-third majority under Article 368, or someone files a petition urging the SC to reverse the 1992 judgement by claiming that social fabric has changed a lot since the judgement was delivered 25 years ago,” he added.

Arun Jaitley(BJP)

Finance Minister Arun Jaitley said the “Congress-Hardik club” is one of mutual deception. “The law of the land is very clear and that is laid down by the Supreme Court and only last week in the Rajasthan case it has been re-affirmed that the 50 per cent cap cannot be increased.”

“So let them contnue to deceive each other and deceive the public by saying that they will devise a methodology to breach the gap,” he told reporters in Delhi. “Legally and constitutionally that is not possible as the law stands today.”

Nitin Patel

Hitting out at Hardik Patel for declaring support to Congress, Gujarat Deputy Chief Minister Nitin Patel said the formula of reservation above the cap set by Supreme Court was something “offered by fools and also accepted by fools.”

“Though it is very much clear that reservation quota cannot go beyond 50 per cent in any situation, Hardik is trying to misguide the Patidar community with the formula offered by the Congress. In my opinion, this formula of reservation is a big joke,” Patel told reporters in Ahmedabad.

Nitin Patel claimed that Congress leaders like Kapil Sibal have made a fool out of Hardik by offering such formula.

Abhishek Manu Singhvi(Congress)

Congress spokesperson Abhishek Manu Singhvi said the party will take steps on the promised quota within the “Constitutional daayra (framework).”

Reacting to Jaitley’s “mutual deception” charge, Singhvi accused the BJP of fooling people everyday.

“If you want to see who has fooled whom, you go and see it in Rajasthan. The BJP is a ruling party there. It fools people everyday. Sometimes they talk about Jat reservation, sometimes Gujjar reservation. They are in power, they can fulfil the promise, yet they don’t,” he told reporters in Delhi.

“We are not in power, when we will come in power there, we will implement it staying completely within Constitutional framework. We have that capabilities to do that.”

Aman Lekhi

Senior advocate Aman Lekhi said the quota promise was “pure power politics” where the primary aim is to grab power and the social welfare purpose behind reservation gets lost.

Retired Justice BN Srikrishna

Justice BN Srikrishna, a former judge of the Supreme Court, told News18 that even if the Congress plans to put this reservation law in the ninth schedule, it would not be able to evade judicial review.

“In Coelho’s case, the Supreme Court has held that just because a law is put in the ninth schedule it is not immune from scrutiny. It has to stand the test of Article 14 and Article 19 of the Constitution. Saying this for election purpose is good but it may not stand the actual test of scrutiny,” he said.

Dr Subhash Kashyap

Constitutional expert and former Lok Sabha secretary general, Dr Subhash Kashyap, said that such a law was only political parties playing to the gallery as the courts have always been against raising the cap.

“I don’t see this as possible. Article 46 is not an enforceable right and a mere guideline for the legislature. Any such legislation is for judicial review and courts have been always against increasing the ceiling of reservation going above the 50 per cent cap,” he said.

Kashyap said it was different for Tamil Nadu because even before the Constitution, the reservation quota was at 69 per cent and the legislation allowing that was inserted in the ninth schedule. “I do not think today any reservation on any ground other than SC, ST can be granted,” he added.

Alok Prasanna Kumar

Alok Prasanna Kumar, senior resident fellow at Vidhi Centre for Legal Policy, said that if Patidars have to be given reservation, then the judgment in Indira Sawhney case would have to be re-examined and the “cap must go.”

“There is no fool proof way of giving reservations. The Congress will have to come out and say one of two things. Either the SC’s 50% cap will have to be re-examined, or reservations will be for anyone and everyone. SC will have to be asked to relook its judgment in Indra Sawhney totally if reservations have to be given to Patidars.”

“There’s no constitutional basis to give Patidars reservations,” Kumar told News18. He added that even if the 50 per cent cap is removed, reservations are not scholarships to be given out to anyone who wants it. “It’s a tool for social reform which cannot be re-purposed by upper castes to retain dominant positions in society.”

Senior advocate Bhaskar Tanna

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Background

If judicial precedents were to be considered, courts have been reluctant to extend the 50 per cent cap on several occasions.

In 2008, the apex court reiterated the ruling in Indra Sawhney (I) (Mandal case) that the total reservation for SC/ST and other backward classes or special categories should not exceed 50 per cent.

The Gujarat government had also passed an ordinance declaring additional 10% quota for economically backward classes among the higher castes in May last year, but the high court stuck it down, calling it unconstitutional.

The Bombay HC in 2015 also stayed Maharashtra government’s decision on Maratha reservation and held that the community cannot be regarded as backward class.

In November last year, the Supreme Court again observed that ceiling of 50 per cent reservation could not be breached while hearing a case on giving quota to Gujjars and other communities under OBC category in Rajasthan.