The bill takes the total quota in Haryana to over 50%, in violation of Supreme Court guidelines, and seeks to provide reservation on religious ground, which the apex court has previously rejected.
New Delhi: While the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Bill, 2016 has passed the first test with the Punjab and Haryana high court dismissing a writ petition against it, paving the way for its notification, according to legal experts its litmus test still remains. Not only would reservations under the bill take the total quota in the state to over 50%, in violation of Supreme Court guidelines, it also seeks to provide reservation on religious ground, something which the apex court has rejected outright in the past. The bill proposes to give reservation to Jats and five other castes – Jat Sikhs, Rors, Bishnois, Tyagis and Mulla Jat/Muslim Jat – in government services and admissions to educational institutions.
The bill had been rushed through by the Manohar Lal Khattar-led government of the BJP in the wake of the violent Jat agitation for reservation in the state. On March 29, when it was passed by the Haryana assembly, Khattar had described the bill as a “win-win” for all sections. While taking up a writ petition against the bill on April 4 the high court had refused to strike it down on the grounds that it had not been notified yet, but it later dismissed the petition.
Technically, the bill still remains on a very weak footing. Khattar’s predecessor Bhupinder Singh Hooda was the first to note that the legislation was a “carbon copy” of what the Congress had provided during his rule and which had been struck down by the Supreme Court.
Constitutional experts also agree that the bill is weak legally, and are questioning why the BJP has listed Mulla Jats and Jat Sikhs among the beneficiaries when the courts have already struck down reservation on religious grounds. Could this be a deliberate attempt to get the bill rejected again? Also, by urging the Centre to put the bill in the ninth schedule, to prevent it from coming under judicial scrutiny, has the Haryana government not tried to bypass the Constitutional norms?
Senior Supreme Court advocate Indira Jaising said the ninth schedule may not be able to help the bill. “I don’t agree with their argument that under Ninth Schedule we can exceed the 50% restriction on reservations. The Supreme Court has come down very heavily and has set aside several such reservations. It has struck them down on religious grounds as also when they exceeded 50%.”
Reservation, she said, has to be on the basis of merit. “You have to see the practical reason. You can’t have reservation on religious grounds.”
Another senior advocate, Kamini Jaiswal, said it was surprising that the BJP has brought this legislation: “Strictly speaking it is not a question of religion in providing reservation to Muslim or Sikh Jats because still they have to be Jats and then the issue of their religion become irrelevant.”
But, she said, a decision has been pending in the Supreme Court on this matter since Andhra Pradesh had also provided reservation to Muslims. “The reservation was challenged on the grounds that it was based on religion, (while) the other argument was that it was not based on religion but on caste.”
In the case of Haryana, Jaiswal accused the BJP of doublespeak, saying it has been declaring in the public sphere that there cannot be reservations based on religion. “So it is quite possible that they want the entire reservation struck down again while at the same time providing a secular face.”
On whether the BJP would be able to immunise the law to provide over 50% reservation under the ninth schedule, Jaiswal said the Supreme Court has held that it does not give immunity. “If they come to the conclusion that it violates the basic structure of the Constitution, namely equality, they will still strike it down. But a similar matter of Tamil Nadu is still pending. However, the matter of Haryana is still liable for challenge.”
Soon after the bill was passed, senior advocate Rajeev Godara, secretary of Swaraj Abhiyan, which broke away from the Aam Aadmi Party in the state, had provided an account of why Khattar’s efforts to bring another legislation to provide reservation to the Jats may not succeed.
Godara’s contention was that the passage of the bill was another attempt by Haryana government to mislead the people of the state. He stated that the previous Hooda government had also brought in a legislation for Jat reservation that could not stand the scrutiny of the courts.
“This bill will also not be able to stand in courts,” Godara said, adding that while Hooda had at least constituted a commission to conduct a survey to provide reservation to Jats and four other categories of people, this government had not even bothered to follow the laid norms.
Godara said the passage of the bill in the assembly had also violated the Supreme Court directed norm of a 50% ceiling on reservations. “To save the bill from judicial scrutiny, the Haryana government has urged the Centre to put it in the ninth schedule. But the highest court of the land can review any law which challenges or goes against the spirit of the the basic structure of the Indian Constitution,” he said.
Instead of trying to fool the people, the state government should use the data collected at the time of the 2011 Census to arrive at the caste records and thereafter formulate a reservation policy, he said..
Godara’s argument has some merit. Back in January 2013, the Hooda government had also notified reservation for Jats, Jat Sikhs, Rors, Tyagis and Bishnois under the special backward classes (SBCs) category, and had provided 10% reservation in jobs in the government services, local bodies and educational institutions. With that, the total reservation in the state had exceeded 50%.
Subsequently, the Punjab and Haryana high court had on July 27, 2015 stayed the Haryana government’s notification, issued during the Congress regime in 2013, on the ground that it was in violation of its earlier orders and that the government could not reserve 10% seats in education institutes. The government was then forced to withdraw the quota for SBCs .
In February this year, the Jats in Haryana once again began agitating for reservation and soon turned to violence. The BJP government then decided to enact another legislation to soothe the frayed tempers.
However, the move does not appear to be legally sound and could crumble with this challenge.