APPEASEMENT in the guise of RESERVATION

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 “9^th 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.

 Hence, it is a fit case for the Hon’ble SC/HC to take suo moto cognizance of the matter to obviate the travesty of rule of law and to preserve the majesty of judiciary.