Congress promise of reservation for Patidars under shadow of quota ceiling

The Congress’ promise of reservation to the Patidar community in jobs and education that earned it the support of young leader Hardik Patel ahead of the Gujarat elections is likely to run into legal trouble.

To get the poll math right, the Congress, looking to make a comeback in Prime Minister Narendra Modi’s home state after 22 years, could have overlooked the quota math.

It is not clear if the benefit would be extended to the influential community, which includes farmers, diamond merchants and industrialists, by including it in the other backward classes (OBCs) or a separate category.

What looks likely is the promise would push the quota beyond the Supreme Court’s ceiling of 50%. Gujarat already has 49% reservation -- 27% for OBCs, 7% for scheduled castes and 15% for scheduled tribes.

Upholding the Mandal Commission recommendation that extended reservation to OBCs, the court had in 1992 capped the quota at 50%.

Last week, the court stayed a decision by the Rajasthan government to give quota to Gujjars, which would have pushed by reservation in the state to 54%.

The benefit to Patidars would be extended under Article 46 of the Constitution and protect by Article 31C, Hardik Paitdar said.

Article 46 is enshrined in the directive principles of the state policy that ask of the state to promote educational and economic interests of the weaker sections of society.

Article 31C, which was added to the Constitution in 1971, protects laws that implement the directive principles even if they violate fundamental rights.

But in 2007, the Supreme Court said there could not be a blanket immunity from judicial review as it was not compatible with the basic structure of the Constitution. The power of judicial review could not be taken away by using Article 31, it said.

The court, however, has made exceptions to the quota cap. In July 2010, it allowed states to exceed the 50% limit, provided they had solid scientific data to justify the increase. At present, two states – Tamil Nadu and Telangana – have more than 50%, while Haryana and Maharashtra are awaiting the Centre and judiciary’s nod.

Will Gujarat be the third state remains to be seen.