Excess Reservation to Gujjars: Is it Costitutionally Valid?

In the land mark case of Indra Sawhney, Supreme Court laid down that reservation should  not be  more than 50%.While the famous case stands to be constitutionally correct, the Rajasthan Government gives 68% reservation to Gujjars by passing two bills [the Rajasthan Economically Backward Classes  Bill, 2015 and and the Rajasthan Special Backward Classes Bill, 2015] in the legislative assembly aiming to provide reservation to this community which are considered to be a backward class by the Rajasthan Government.

In my opinion, reservation should not be given to people by looking at their caste, but instead by looking at their social and economic status. Many Gujjar community people are politically influential and don’t need reservation, and on the other hand there are many people in the general category who are having very poor living conditions but are still unrecognised by the government.

However, while dealing with the issue of excess 18% of reservation provided to the Gujjar Community, we need to consider the reasons behind such excess reservation also. The Rajasthan Government introduced such reservation under pressure, as there have been various incidents by the Gujjar Community people against the State in order to harm the tranquillity of the State.

Article15 (4), gives a state the power to make special provisions with regards to reservation, for the advancement of any socially and educationally backward class of citizens. By keeping this Article in mind, one can easily say that State can make any provision, if it thinks necessary. However, its much more complicated than that. In order for the State to make any special provisions, it needs first to show (by conducting surveys) that there exists a community which is so socially backward that it needs reservation (over and above the usual 50% criterion) and later by virtue of Article 340, it needs the president’s assent to any such law making. While presenting any assent to the State making law, the president is required to lay out a commission, and such commission’s main purpose is to show the social and economic backwardness of the community which seeks excess reservation.

With respect to the above mentioned Articles, the constitutional validity of the given reservation can easily be challenged. One reason as to why this will be challenged is that this reservation has not been assented by the President. Moreover, the High Court of Rajasthan has also asked the State to give valid reason while declaring the Gujjar Community to stand under the category of ‘Special Backward Class’. In furtherance to this, the President is expected to create a commission and even this hasn't been followed by the Rajasthan Government.

On one hand, Article 29 of the Indian Constitution provides an unbiased policy over various races and castes of India and gives a right to education, and on the other hand Article 15(4) provides a mechanism for the State to limit such right by implementing excess reservation. My argument here stands to be that limiting the educational rights of other non backward classes is equal to restricting the rights. Those non backward class people who have managed to get education in the same institute as that of the backward class people are suffering from low placements and job opportunities. By giving such extra reservation to the backward classes, the entire circle of old hystorical caste system is just merely being reciprocated and not eradicated.

While introducing reservation in the Indian Constitution, the main aim was to somehow uplift the down-classed and to level them up with the elite. However, this basic idea of reservation seems to be faded away by the reckless use of Article 15(4) by the states.

Even though the High Court of Rajasthan has asked for valid reasons to show the backwardness of the Gujjar Community people, the case of Tamil Nadu prevails where the President gave his assent over 69% reservation to the backward classes.

The question hence still prevails as to whether this Special Provision by the Rajasthan State will ever be given the assent by the President or not and will it becoming in force or not. 

"The above article was written by Tanuj Bhadana, a 3rd year law student of Jindal Global Law School."