The
Haryana Government is going to town on the recently passed Reservation Bill ie
Haryana Backward Classes (Reservation in Services and Admission in Educational
Institutions) Bill, 2016 paving the way for quotas of 50% in Group A and Group B services, and of 67% in Group C and Group D services and admission in Government/Government aided Educational Institutions. Certain sections of beneficiaries are also very
upbeat about it. However, it all seems very premature and uncalled for owing to
highly precarious fate of the said desperate piece of appeasement disguised as
Reservation Bill at the altar of impending judicial scrutiny in view of
discussions held here-in-after. The Hon’ble Supreme Court of India has
repeatedly held that “in every
case where the State decides to provide for reservation it has to collect
quantifiable data pursuant to a scientific survey showing backwardness of the
caste/class to such an extent that people belonging to such caste/class
are not able to compete in open/general category and resultant inadequacy
of representation of that caste/class in public employment” ( See Indra Sawhney etc vs
UOI, 1992 ; M. Nagaraj and others vs UOI and others, 2006; Ram Singh
& others vs UOI , 2015; Ram
Kumar Gijroya vs Delhi Subordinate Services Selection Board & Anr 2016) . Moreover, Supreme Court in
I.R. Coelho case (2007) unequivocally held that “9th Schedule
does not provide a blanket immunity to a law that abrogates or
abridges Fundamental Rights . Such a violation/infraction shall be open to
challenge on the ground that it destroys or damages the basic structure as
indicated in Article 21 read with Article14, Article 19 of the Constitution and
the principles underlying there under and such law may be invalidated in
exercise of judicial review power of the Court in appropriate cases”. The
Supreme Court has also held that “Reservation in employment in services, and
admission in educational institutes shall not ordinarily exceed 50% of the
appointments or posts or seats barring certain extra-ordinary situations (See
Indra Sawhney 1992, Ashoka Kumar Thakur 2008).
Therefore,
the State is free to exercise its discretion of providing for reservation to certain caste(s)/class(es) [in addiition to SC/STs] subject to Constitutional and Supreme Court's laid down limitations, namely, the ceiling-limit of 50%; the principle of
creamy layer; the compelling reasons, namely, backwardness, inadequacy of
representation, and the overall administrative efficiency.
The
only contemporaneous data of backwardness available in Haryana is in the form
of Justice KC Gupta Report 2012 which was found flawed and unworthy of being
acceptable by the Supreme Court in the case of Ram Singh & Ors vs Union of India 2015 (quashing the Central OBC Jat Reservation
notification and following which Chandigarh High Court stayed the Special
Backward Classes (SBCs) reservation notification in Haryana). Thus, it would be
apt to conduct such survey of all castes already in the BC pool, and other
castes seeking inclusion therein and then retain/include only those castes
which satisfy the aforesaid test of the Supreme Court. Distressed farmers
stuck in the whirlpool of agrarian crisis are at the centre of current
reservation agitation in Haryana. But the existing creamy layer criteria wrt
BCs are too narrow & ineffective to allow any substantial benefit of
reservation to percolate down to the said most needy segment of society.
Induction of some creamy layer criteria wrt SC/STs would also be apt.
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