The Hardik Patel-led Patidar Anamat Andolan Samiti (PAAS) has formally announced its support to the Congress in the Gujarat Assembly election. Hardik Patel expressed satisfaction over the âformulaâ the Congress has forwarded to ensure reservation benefits to the Stateâs Patidars. Since the Congress has remained tight-lipped over the agreement, we have the PAAS leaderâs word on the bare information he has thus far offered.
Hardik Patel said that the quota would be provided using Articles 31(C) and 46 of the Constitution of India. The belief is that the provisions would help skirt the 50 per cent cap that the Supreme Court has determined for total reservations and keep the quota decision immune from judicial review as well. The legal way out is supposed to have been suggested by Congress leader and senior Supreme Court advocate, Kapil Sibal.
Article 31(C), which is in Part III of the Constitution dealing with fundamental rights, says, âNotwithstanding anything contained in Article 13, no law giving effect to the policy of the state towards securingâ¦ shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19, and no law containing a declaration that is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.â
The purpose of this Article, particularly evident in the second part, was to shield the state from judicial review in cases where it sought to give effect to the Directive Principles of State Policy as laid down in Part IV of the Constitution. This is the attractive aspect for PAAS leaders and which the Congress has dangled like a carrot before them. But the Supreme Court had struck down this second part. In both the Keshavananda Bharti case (1973) and in the State of Tamil NaduÂ versusÂ Abu Kavur Bai case (1983), where the State had argued that an Act it had passed fell within the purview of Article 31(C) and was beyond judicial scrutiny, the Supreme Court held that the second part which barred judicial intervention, was unconstitutional.
The apex court maintained that there was no conflict but total harmony between fundamental rights and the directive principles; one supplemented the other. It also reminded that judicial review was a basic feature of the Constitution and could not, thus, be done away with. At the same time, it also upheld the constitutional validity of the first portion ofÂ Article 31(C). Given this situation, it is clear that while a State regime can invoke Article 31(C) to make laws that in its view secures the interests of a particular community even at the cost of sacrificing equality before law (Article 14) and freedom of expression (Article 19), such a law can be challenged in a court of law. In the context at hand, the Congress appears to have told the PAAS that if it comes to power in Gujarat, it would use this Article to provide reservation for the Patidars â and then, if the need arose, fight it out in the court.
In addition, the Congress believes that Article 46 will fortify its battle in favour of Patidar quota. This provision is part of the Directive Principles of State Policy. The Article says, âThe state shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.â
Since the Scheduled Castes and Scheduled Tribes have already been well defined, and in the Gujarat context there is no controversy over their nomenclature, the term, âweaker sectionsâ is what the Congress (and the PAAS) seem to have adopted for the Patidar community. But here too, in the Indra Sawhney etcÂ versusÂ Union of India case of 1992, the apex court had clarified that âweaker sectionsâ did not necessarily refer to a group or a class but included all those who had been rendered weak as a result of various causes â poverty, natural calamity, disabilities etc. It will need a stretch of imagination for any Government to bring the powerful Patel community of Gujarat under the âweaker sectionsâ category, as the apex court understands the term.
The other, even more challenging, task before a Government (with or without PAAS support) would be to keep reservations within the 50 per cent ceiling set by the apex court. The court had dealt with this âbaffling questionâ, as it put it, first in the Indra Sawhney issue, and later in 2008 when it reiterated the ruling in the former case. After a great deal of deliberation, which had become necessary since the Constitution had not provided for any specified limit to reservations, the court declared that the total reservations (including that of the Scheduled Castes, Other Backward Classes and whatever other names that could be thought of), could not be more than 50 per cent. It said, ââ¦the principle of balancing ordains reservation, of any manner, not to exceed 50 per centâ.
This order had come in the wake of attempts being made by various regimes to breach the outer mark. IN the case of Gujarat, the total reservation figure is already at 49 per cent.
TheÂ 50 per cent ceiling remains the law of the land. It is true that States such as Tamil Nadu have gone ahead and exceeded the limit, but their decisions are already under the judicial scanner. So will any similar move in Gujarat by the Congress â if it comes to power.
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(The writer is Visiting Fellow at Vivekananda International Foundation, senior political commentator and public affairs analyst)