Jharkhand Government Passes Bill providing 77% Reservation

Enforcement of the Right to Equality enshrined under Article 14 is not confined to treating all people equally; rather, it also ensures special treatment for the unequal. Hence, reservation is an aspect of equality that ensures the advancement of reserved categories’ social, educational, and economic backgrounds, i.e. scheduled castes, scheduled tribes, and other backward classes. Our Indian Constitution empowers the Government of India and the State Governments to make laws for reservation. And the Indian judiciary keeps a check on the fact that the provided reservations are constitutionally valid.

Recently, the Supreme Court upheld the 103rd Constitution Amendment that provided 10% reservation to economically weaker sections in the society, thereby observing that the 50% cap of reservation (observed in Indra Sawhney v. Union of India) is not rigid but flexible.

The effect of the said pronouncement is witnessed in the reservation bill passed by the Jharkhand Government that provides for 77% reservation in government posts and services.

Breakdown of the Jharkhand Reservation of Vacancies in Posts and Services (Amendment) Bill, 2022

The Jharkhand Government passed a bill increasing the reservation from 60% to 77%, which includes Scheduled Caste ( 12% quota), scheduled tribe (28% quota), other backward class reservations (27% quota), and economically backward class (10% quota). Hence, it can be observed that though there is no express mention of the judgment in the said bill, the above 50% cap is contrary to the Indra Sawhney case.

The rationale behind the unanimous passing of the said increased reservation cap is said to be the lack of benefit of reservation in proportion to the pollution of ST/SC/ OBC and EWS of the state. The bill has also recommended an amendment to the Ninth Schedule of the Constitution, which exempts matters from judicial scrutiny.

Also Read: The Legality of Reservation in the Private Sector

The legality of the Jharkhand Reservation of Vacancies in Posts and Services (Amendment) Bill, 2022

Raising the reservation percentage to 77% for government jobs in Jharkhand, the general category seats are reserved to 23% only. Is it fair for the general category, and whether this bill will pass the test for legal validity is yet to come before the court?

In the present blog, the author shall try to elucidate and analyse the legitimacy of the present cap of 77% reservation through various tests provided below:

Indra Swahney v. Union of India

This landmark case, also known as the Mandal Commission case, explicitly observed that the total reservation provided to SC/ST and OBC must not exceed 50 percent. Hence, any reservations that exceeded the prescribed cap were declared unconstitutional after the said pronouncements.

“Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonable limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts” (Para 94A of the judgment)

Hence, if we look solely at this case, the 77% cap is unconstitutional.

103rd Constitutional Amendment

The said amendment was introduced in the year 2019, which provided for 10% reservations in education and government sectors for the economically weaker section in the general category, thereby amending Article 15(6) and Article 16(6) of the Indian Constitution. Hence, the said amendment raises the cap from 50% to 60%.

The Jharkhand Bill fails to pass the test of the 103rd amendment as well.

 Janhit Abhiyan v. Union Of India

The Constitution bench of the Supreme Court upheld the validity of the 103rd constitutional amendment in a 3:2 majority. The majority opinion was of the view that the 50% cap mentioned in the Indra Sawhney is flexible and a 10% reservation that exceeds the cap to 60% is not violative of the basic structure of the Indian Constitution.

“Reservations for economically weaker sections of citizens up to 10% in addition to the existing reservations does not result in violation of any essential feature of the Constitution and does not cause any damage to the basic structure of the Constitution of India on account of breach of the ceiling limit of 50%. This is because that ceiling limit itself is not inflexible and in any case applies only to the reservations envisioned by Articles 15(4), 15(5) and 16(4) of the Constitution of India” (Observation of Justice Maheshwari)

Hence, it is visible that the stand for flexible ceiling limit has enabled the Jharkhand Government to exceed the limit to 77%. But the question arises can the flexible limit hamper the interest of the general population living in the state?

According to the author, the said bill can pass the test only if it is given a place in the 9th schedule. Though the EWQ quota has provided the ceiling limit to be flexible, the government must also stay cautious of the fact the reservation must be detrimental to the rule of equality.

Only Saviour: Inclusion in the 9th schedule of the Constitution

The said bill recommended an amendment to the 9th schedule of the Constitution. What is the 9th schedule? It contains the list of central and state laws that are away from the lens of judicial scrutiny, i.e. cannot be challenged in a court of law for violating fundamental rights. It is to be noted that the schedule does not give blanket protection since the said laws under the schedule could be challenged based on violation of the basic structure.

Hence, the inclusion in the 9th schedule can save the bill from being challenged in a court of law, but it seems to be a far-sighted view, left to the fate of the Central Government.

Also Read: 100% Reservation under Constitutional Scheme

Conclusion

From the above analysis, it can be observed that the present Jharkhand Reservation of Vacancies in Posts and Services (Amendment) Bill, 2022 could have been constitutionally valid if the reservation was confined to 60%, but the increase in reservation cap to 77% doubts the legal validity of the said bill. Further, the rationale given by the Jharkhand government, i.e. the lack of benefit of reservation in proportion to the pollution of ST/SC/ OBC and EWS of the state, must pass the test of proportionately and equality at the same time. Therefore, the legislators must keep the vision of Dr. B.K Ambedkar in mind, i.e. reservation must be a temporary and exceptional benefit.

Arshnit Sandhu has completed her LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.

Disclaimer:  The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.

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