Do Patidars ‘Constitutionally’ Qualify for Reservation?

The absence of “backwardness” means that there is no constitutional basis for Patels to claim reservation.

Patidar Anamat Andolan Samiti leader Hardik Patel. 

(Photo: Altered by The Quint.)

Is it constitutionally possible to reserve seats in colleges and government jobs for the Patidar community (or Patels) in Gujarat?

This seems to be the question that is on everyone’s minds in the final laps of the Gujarat State Assembly elections in December 2017. It is not enough that the community is angry at the incumbent Bharatiya Janata Party for its mishandling of the agitation in the last three years – the Congress party must show that there is a constitutionally plausible route to grant reservations to Patels in Gujarat.

Constitutional Hurdle: Breaching 50 Percent Limit

Attempts at providing reservations for the Patels in Gujarat have fallen flat so far. They have met the same fate as reservations for Jats in Haryana and Rajasthan – struck down by courts for taking the total amount of reservations to beyond 50 percent of the seats and posts.

This hurdle is not an insurmountable one, and governments have not done their homework on how to get over this hurdle yet. There is, however, a much tougher constitutional hurdle to get past in order to reserve seats and jobs for Patels.

There is no constitutional basis for the 50 percent limit on reservations. It is a pure judicial creation, traceable to MR Balaji v State of Mysore and T Devadasan v Union of India, and sanctified by the nine-judge bench of the Supreme Court of India in Indra Sawhney v Union of India.

Yet, it is not an ironclad ban. Reservations may exceed 50 percent of the total seats or posts in certain exceptional situations – as even the Supreme Court in Indra Sawhney recognised. However, what these situations are has never been fully articulated.

However, at least one major state does have reservations exceeding fifty percent: Tamil Nadu.

As per the Tamil Nadu reservations law, 69 percent of seats and posts are reserved for the Scheduled Castes, Scheduled Tribes and Backward Classes. This law was placed in the 9th Schedule by the Narasimha Rao government, in a bid to prevent judicial scrutiny against Article 14 and 19 of the Constitution.

However, the Supreme Court clarified that they can still see if the placing of the law in the 9th Schedule violates the Constitution. As it stands, this has not yet been decided and could have a bearing on any effort to exceed the 50 percent limit for Patels. Be that as it may, it is still possible to take this route in the context of Patels.

Are Patels Constitutionally Entitled to Reservation?

Whether granting reservations for Patels would entail breaching the “50 percent limit” imposed by the Supreme Court is a second-order question. It can only come into the picture once it is conclusively shown that Patels are constitutionally entitled to reservations. Reservation of seats and jobs is not an exception to the guarantee of equality under Article 14 of the Constitution, but in furtherance of it.

Also Read: Decoding the Patidar Discontent that Led to Hardik Patel’s Success

Reservations in educational institutions are traced to clause (4) of Article 15, while reservations to government jobs are traced to clause (4) of Article 16. Although slightly different in wording, one common feature is the requirement of “backwardness” – social and educational backwardness in the context of college reservations and a lack of representation in the services in the context of government jobs.

While scheduled castes and scheduled tribes are constitutionally considered to be “backward” (given the long history of discrimination, oppression and absence from the mainstream), other castes and classes in society must be shown to be “backward” on these parameters to get reservations.

The Scheduled Castes, the Scheduled Tribes and the other socially and educationally backward classes… have long journeys to make in society. They need aid; they need facility; they need launching; they need propulsion. Their needs are their demands. The demands are matters of right and not of philanthropy. They ask for parity, and not charity.

Justice O Chinappa Reddy said in <a href="https://indiankanoon.org/doc/1759197/">KC Vasanth Kumar v State of Karnataka</a>:

Economic Backwardness is Not the Sole Criterion

The key point here is about parity. Dalits, Adivasis and Other Backward Classes seek parity with the privileged.

Mere economic backwardness is not a basis to claim reservation. It must be shown, as the Supreme Court clarified in Indra Sawhney’s case, that social and educational backwardness of the caste is leading to economic backwardness. The Supreme Court broadly suggested this, without prescribing it. 

Unlike the 50 percent limit, this has some basis in the text of the Constitution itself – in the absence of any social and backwardness, if merely economic deprivation were enough to entitle a caste to reservation, it would be a case of treating unequals as equals and therefore contrary to Article 14’s mandate of equality before the law. The test is to see the structural (not temporal) factors for backwardness – caste discrimination being the prime among them.

Patidars Are Not Victims of Social and Educational Backwardness

There is absolutely no material suggest that Patidars as a caste group ever suffered from such structural inequality. On the contrary, there is enough material to suggest they enjoy a dominant position in society, almost on par with Brahmins.

Patels were well represented in the Gujarat State Assembly and State cabinet, and going by the candidates announced by the major parties, will stand well represented irrespective of who wins.

As things stand, the absence of any indicators of social and educational backwardness means that there is no constitutional basis for Patels to legitimately claim reservations. Or at least, none that can stand up to serious scrutiny in court.

Also Read: Mehsana to Dahod: Patidars Stir Their Milk & Politics Differently

(Alok Prasanna Kumar is an advocate based in Bengaluru and can be reached @alokpi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

(Voices of Gujarat: Tired of listening to netas make promises? As Gujarat goes to polls, The Quint wants to listen to the real voices of Gujarat – the voters. Tell us what issues matter to you this election season. Send in your videos to [e-mail] or WhatsApp @ [phone])