Karnataka Government decision to increase S.C, S.T quota -Unconstitutional.

 

B.V. Acharya, Senior Advocate and former Advocate General for Karnataka 

The decision of the Karnataka Cabinet taken today (08.10.2022) to increase the quota for Scheduled Castes and the Scheduled Tribes from existing 15% and 3% to 17% and 7% without any alteration of other quotas such as Other Backward Class and General Category clearly amounts to flouting the mandate of the Hon’ble Supreme Court of India which renders void any reservation beyond 50%. The law in force in Karnataka already permits for reservation to the fullest extent of 50% in the following ratio:

Other Backward Class                35%

Scheduled Castes                      17%

Scheduled Tribes                        3%

Total                                         50%


Obviously the remaining 50% alone is available in the General Category. The ratio in Indra Sahani case implied that reservation should not exceed 50% which means General Category should not be less than 50% of this ratio is breached to any extent, the same will be violation of the principles of equality of opportunity enshrined in the Constitution which is a basic feature of the Constitution.

The Law Minister has clarified that the present decision to increase the quota of both the Scheduled Castes and the Scheduled Tribes will not in any way affect the quota for Other Backward Class. Obviously this means that the total reservation will be to the extent of 56% which will be 6% above the ceiling limit prescribed by the Supreme Court. Naturally expecting challenge to the validity of such decision of the Government, the Minister has mooted/moved the proposal to get permission to such law by getting such law included in the 9th Schedule to the Constitution of India. Such a proposal appears to have been made without study of the position of law on the subject.

In the first place, Legislation will have to pass an enactment incorporating the decision. (The alternate suggestion to pass an execution order is not feasible; even otherwise an executive order cannot be included in the 9th Schedule of the Constitution). For including a State enactment in the 9th Schedule, Constitution cannot be amended by passing of Constitution Amendment Act. It is very unlikely that the Parliament will pass such a Constitution Amendment Act which also requires the consent of the Central Government. Even if one crosses all these hurdles, the ultimate goal of preventing the Hon’ble Supreme Court or the Hon’ble High Court from pronouncing upon the Constitutional Validity cannot be achieved, as in Matharanda Bharathi’s case the Hon’ble Supreme Court of India has held that the power of judicial review is the basic principle of the Constitution of India and any amendment of 9th Schedule of the Constitution including new enactments passed thereafter will not have protection of Article 31B and that the validity of any enactment so included is liable to be struck down if the same violated any provision of the Constitution including Article 14 of the Constitution. Thus all the present strategy of the Government to serve the legislation from judicial scrutiny is same to result in futile exercise.

The State Government’s intention to follow model of T.N wherein such legislation is passed may not bear fruit, as the same is under challenge before the Hon’ble Supreme Court of India. On the other hand, the Hon’ble Supreme Court very recently in 2001 in the case of Dr.Jaishri Lakshman Rao Patil [(2001) 8 SCC 1] delivered the judgment striking down the order passed by the Maharastra Single Bench fixing quota beyond 50% as unconstitutional. It is reasonable to expect the same result in T.N.Case also ultimately.

If the Government so intends it can save the present decision only if it is possible to reduce the quota of reservation of Other Backward Class by 6% so as to maintain the reservation to 50% and maintain status quo of 50% for General Category.


 


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