Supreme Court’s strong opposition, then how will Rahul Gandhi be able to increase the reservation limit? There is a way

New Delhi: Rahul Gandhi has said that he/she is in favour of caste based reservation and will increase the reservation limit from the current 50%. The Leader of Opposition in Lok Sabha has claimed in the House that he/she will get the caste census done. On the other hand, the Supreme Court is firm on the 50% reservation limit. It has never allowed the 50% limit to be increased except in special circumstances. Many states also tried to ignore the spirit of the Supreme Court, but they had to face defeat in the court. So the question arises that how is Rahul Gandhi claiming that he/she will definitely increase the reservation limit?

The Supreme Court is standing in the way of Rahul

The Supreme Court’s decision in the Indira Sawhney vs Union of India case on reservation is very important. In this 1992 decision, a bench of nine judges of the Supreme Court had said that governments can provide reservation, but the total reservation cannot exceed 50% except in unusual circumstances. Then in a 2006 case of M. Nagaraj vs Union of India, the Supreme Court made it clear that the reservation limit in promotions will also remain 50%. The Supreme Court also kept a window of exceptions open by citing unusual circumstances in this. Similarly, in 2021, the Supreme Court canceled the decision of the state government on the matter of Maratha reservation. The Maharashtra government brought a law to give 16% reservation to the Maratha community. Due to this, the reservation limit in the state crossed 50%. The Supreme Court stayed the implementation of the law.

But Tamil Nadu did it

But Tamil Nadu is a state where 69% reservation is applicable. This is where a path opens for Rahul Gandhi. We will talk about how Tamil Nadu defied the 50% reservation limit in a little while, but first know that there are other states like Maharashtra that tried to follow the path of Tamil Nadu but were not successful. These include Rajasthan, Chhattisgarh, Madhya Pradesh, Karnataka, Andhra Pradesh etc., which broke or tried to break the 50% reservation limit in recent years. However, these cases went to the Supreme Court and it foiled these efforts.

Know Article 16(4) of the Constitution

Part III of the Constitution discusses fundamental rights. One of the fundamental rights is the ‘right to equality’. Article 16 of the Constitution mentions ‘equality of opportunity in matters of public employment’. The first point of this topic, 16(1), says, ‘There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any post under the State.’ That is, the Constitution says that in the matter of appointments, the government will look at everyone equally, there will be nothing special for anyone. But Article 16(4) of the Constitution says, ‘Nothing in this article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens whose representation in the services under the State is not adequate in the opinion of the State.’ That is, if a class of citizens of the country has not been able to join the mainstream, then the governments are free to make special arrangements for it. This is where the reservation system is born.

Ninth Schedule Weapon

Keep in mind that the Constitution of India is divided into parts, schedules and articles. When our Constitution came into force on January 26, 1950, it had 22 parts, 8 schedules, and 395 articles. Among these, the 9th Schedule of the Constitution is special. According to Article 31 (b), any subject placed in the 9th Schedule cannot be considered invalid on the ground that it violates the rights under Part III. Article (b) is titled – Validation of certain acts and regulations. It states, ‘Without prejudice to the generality of the provisions contained in Article 31(A), none of the Acts and Regulations specified in the Ninth Schedule and any of the provisions thereof shall be deemed to be void or ever to have been void on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges, any of the rights conferred by any of the provisions of this Part and notwithstanding any judgment, degree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall continue to be in force, subject to the power of any competent Legislature to repeal or amend the same.’

Will Rahul defy the Supreme Court by amending the Constitution?

The Tamil Nadu government used this provision of the Constitution to increase the reservation limit. In 1992, after the Supreme Court’s decision on Indira Sawhney vs Union of India, a bill was brought in 1993. The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in educational institutions and appointments or posts in the services of the state) Bill, 1993 was given the form of a law and the President’s consent was taken to include it in the Ninth Schedule. For this, representatives of all parties of Tamil Nadu, led by the then Chief Minister J. Jayalalitha, came to Delhi and met the President. Once it became a part of the Ninth Schedule of the Constitution, this law of the Tamil Nadu government became out of the scope of court review. So if Rahul Gandhi comes to power, he/she can do this at the central level. If he/she brings a law to break the reservation limit of 50% and takes permission from the President to include it in the Article of the Constitution, then he/she can fulfill his/her promise. Constitutional amendment will be required for this.

Aadhaar can be obtained from caste census

If Rahul comes to power and increases the reservation limit beyond 50% through constitutional amendment, then a moral question will arise. That is, how correct is it to ignore the spirit of the Supreme Court? Rahul Gandhi can also destroy this question, for which the way has been provided in the Supreme Court’s decisions regarding reservation. The Supreme Court has always said that reservation cannot be more than 50%, but it can be done only when there are extraordinary circumstances and for this there should be solid and measurable data which proves that a particular community is very backward for which extraordinary steps need to be taken. In this direction, the data of caste census can be useful. Rahul Gandhi is also insisting on caste census, but it is very difficult to say how clear the data coming from it will be able to present the situation of backwardness.

Rahul’s statement on reservation during his/her US tour

However, Rahul Gandhi has said in his/her US tour that caste based reservation will continue till a fair environment is created in India. Rahul has come under the target of his/her opponents on this issue. BJP and BSP strongly opposed this statement of Rahul. BJP spokespersons and BSP chief Mayawati said that Rahul Gandhi actually wants to end reservation. Mayawati said that according to Rahul, if the situation of India improves, then reservation will be ended. This makes it clear that Rahul is against reservation. Similarly, BJP spokespersons said that opposition to reservation is in Rahul Gandhi’s DNA. From Jawaharlal Nehru, Indira Gandhi to Rajiv Gandhi, his/her ancestors had strongly opposed reservation in their governments. BJP said that Congress party never supported OBC reservation, rather when the opportunity came, they openly opposed it.

Talk of reservation in the season of elections, then clarification

Assembly elections are going to be held in Haryana and Jammu and Kashmir. Elections are also going to be held in Maharashtra and Jharkhand this year. In such a situation, Rahul Gandhi immediately became alert after seeing himself surrounded on the issue of reservation. he/she clarified that he/she is not against reservation but is such a big supporter that he/she will manage to cross the 50% limit as soon as he/she gets a chance. Rahul said during an interview at the National Press Club of America, ‘Someone twisted my statement to say that I am against reservation, but let me make it clear – I am not against reservation. We will take reservation beyond the limit of 50 percent.’ A day earlier on Tuesday, while talking to the students and teachers of Georgetown University in Washington DC, he/she had said that his/her party Congress will think about ending reservation only when fairness prevails in India. he/she believes that India has not yet reached that point. Supporting the caste census, Rahul said, ‘The biggest thing is that 90 percent of India – OBCs, Dalits and tribals are outside this scope.’