Judiciary May Come in the Way of Haryana’s Flawed Jat Quota Bill

Khattar govt’s bid to passing a bill ensuring quota for Jats in government jobs may backfire, writes Vipin Pubby

Haryana witnessed unprecedented mayhem spread over a week in February in the wake of an agitation launched by the Jats to demand reservation in government jobs. At least 30 people were killed and over 400 injured while frenzied mobs indulged in arson and loot leading to a loss estimated at over Rs 25,000 crore. Nearly a thousand trains were cancelled or diverted and the highways remained blocked for close to a week.

Towards the fag end of the agitation, and by the time the army helped restore normalcy, the Chief Minister Manohar Lal Khattar announced his government’s decision to accept the demand for reservation. It was seen as buckling under pressure, raising the possibility of other sections of society exerting similar pressure to get their demands accepted.

Khattar Government’s Haste

Khattar’s assurance came even after legal experts pointed out that the courts had already stayed a similar provision sought by former CM Bhupinder Singh Hooda, not to forget the Supreme Court ruling on the limit of reservation in government jobs. Members of other backward classes (OBCs), who were to be affected if the Jat community also got reservation, too were strongly opposed to the demand but Khattar went ahead and declared his government’s decision to accept the Jats’ demand. Perhaps he didn’t want to be seen annoying the Jats who constitute 29 per cent of the state’s population.

Not totally convinced by Khattar’s assurance, the Jats set out a deadline for the state government to introduce legislation before the end of the state assembly’s budget session or face another agitation. It was to beat this deadline that the Khattar government piloted a bill, the Haryana Backward Classes (Reservation in Services and Admission in Educational Institutions) Bill, 2016, to provide reservation to Jats and five other communities under a newly carved category termed BC(C).

To ensure that the legislation was not struck down (as was done by the courts earlier), the government also pushed through a resolution seeking help from the Centre to place the new Bill in the 9th Schedule as the Acts under it are not open to judicial review and can’t be invalidated on the ground of violation of the fundamental rights.

Legal experts, however, point out that bringing in the Bill and passing the resolution could just be a ploy to buy time and relieve pressure to please the jat community. They stress that for one, putting the new legislation in the 9th Schedule would not be easy and that it can be done only by an amendment to the Constitution under Article 368 by the Parliament.

Several Loose Ends

• Khattar government’s Jat Quota Bill is a political ploy since the Jats constitute 29 per cent of the state’s population.
  
• Haryana government has also pushed through a resolution to push the new Bill in the 9th Schedule of the Constitution.
  
• Legal experts point out that enshrining the new legislation in the 9th Schedule will not be easy.
  
• The Bill provides reservations in excess of the 50 per cent prescribed by the Supreme Court and may be struck down as well.
  
• Khattar government’s proposal may not see the light of the day with the known stand of the judiciary on previous occasions.
  

Flaws in the Bill

The Bill is a non-starter also due to the fact that a nine-bench ruling by the Supreme Court has already upheld the authority of the judiciary to review any law including those included in the 9th Schedule. The Bill, passed on Tuesday, provides reservations in excess of the 50 per cent prescribed by the Supreme Court and is bound to meet the same fate as the earlier ones.

While bringing in the Bill, the Khattar government had primarily relied upon the recommendations of the Haryana Backward Classes Commission of 2011 to make out a case for grant of quota to the Jats and five other castes. However, the apex court had trashed the recommendations of the Commission while setting aside the inclusion of Jat community in the OBC category on March 17 last year.

Even as the Khattar government had been seeking to take ‘credit’ for bringing in the legislation, the Jat leaders have expressed cynicism. Perhaps aware of the likely judicial intervention and the poor grounds on which the new Bill is sought to be based, a section of the Jat leaders are sticking to their earlier demand - that the Jats be granted reservation in the existing 27 per cent reservation for the OBC category. They think that any increase in percentage of reservations is bound to be struck down by the courts and that the new law is only an exercise in futility.

Will the Bill Pass Legal Scrutiny?

As was expected, the provisions of the new Bill have been challenged before the high court and even before it could get the governor’s nod to become an Act. The petitioner, Advocate Shakti Singh, has pleaded that the state’s action was biased, malafide and arbitrary and that it was taken under pressure of a particular community.

Seeking quashing of the Bill, the petitioner said that the Bill was against the law laid down by the constitution bench of the Supreme Court which said reservations could not exceed 50 per cent. The petitioner said the Bill was passed “due to fear of agitation, without obtaining any survey, committee or commission report”. The petition will come up for a hearing on April 4.

Even BJP MP Rajkumar Saini, who publicly opposed reservation for Jats in OBC category, has declared that he would move the Supreme Court against the legislation and has called it “murder of democracy”.  The MP, who is also president of the All India OBC Brigade, has said it was an “atrocity” committed on the OBCs and has vowed to quit politics if the new provisions were not reversed.

Clearly the Khattar government’s proposal may not see the light of the day with the known stand of the judiciary and stiff resistance from other sections of the society.  If at all, the move to appease the Jat community may have opened floodgates for more groups or communities trying to arm twist the government on various issues.

(The writer is a Chandigarh-based senior journalist)

Also read:

Beyond Haryana’s Quota Politics: After the Tragedy Comes the Farce