42% BC quota: ‘State govt to face many legal hurdles for taking ordinance route'
This ordinance route, just before the upcoming Panchayat elections, is to enhance Backward Classes (BC) reservations in local bodies. This move carries serious legal and political implications, especially since it attempts to exceed the 50% reservation ceiling imposed by the Supreme Court.
The Triple Test Doctrine
The Supreme Court, in K. Krishnamurthy v. Union of India (2010) and reaffirmed in Vikas Kishanrao Gawali v. State of Maharashtra (2021), laid down the Triple Test for granting OBC reservations in local bodies:
♦ Empirical Identification: A rigorous study identifying social and educational backwardness.
♦ Political Backwardness Analysis: Unit-wise examination of backwardness for each local body to determine the exact quota percentage.
♦ 50% Cap Compliance: The total reservation should not exceed 50%, unless backed by extraordinary justification based on quantifiable data.
The Supreme Court has categorically held that this ceiling is part of the basic structure of equality, and any deviation requires robust evidence and exceptional circumstances.
Telangana's Plan and Legal Complexities
The Telangana Cabinet approved a draft ordinance to implement 42% BC reservation in Panchayat Raj institutions, supported by two Bills already passed in the State Assembly for BC reservations in education and employment. The percentage is based on a comprehensive caste survey report submitted to the BC Commission headed by B. Venkateshwara Rao.
Once approved by the Governor, the ordinance will apply this enhanced quota in the upcoming local body elections. However, this raises several constitutional and judicial concerns:
♦ The Governor, Jishnu Dev Varma, is reportedly seeking legal opinion before giving assent.
♦ There are doubts about the legality of using an ordinance to bypass pending constitutional processes, as two original Bills are still with the President for assent.
♦ The Telangana High Court, while directing the government to conduct local body elections by September 30, did not address the reservation policy. Using this as urgency for an ordinance could be seen as colourable legislation- a misuse of power for political ends.
Conflict with the Supreme Court's 50% Ceiling
The proposal directly challenges the SC's rulings in Indra Sawhney and subsequent cases, which strictly maintain that reservations should not cross 50%, except in rare situations backed by empirical data and transparency. Telangana argues that its caste survey shows 56% of the population belongs to BC communities, including BC Muslims, thus creating an 'extraordinary situation.' However, the report remains confidential, raising questions:
♦ Can empowerment of BCs be achieved without transparency and accountability?
♦ Does withholding the report undermine public trust and judicial scrutiny?
Key Constitutional Issues
♦ Article 213(1)(a) – The Governor cannot promulgate an ordinance on a subject requiring the President's prior sanction. Here, the subject overlaps with pending Bills awaiting Presidential assent, making the ordinance potentially unconstitutional.
♦ Doctrine of Colourable Legislation – Proroguing the Assembly at 3 PM and sending an ordinance on the same subject at 4 PM indicates an attempt to circumvent constitutional checks, disturbing the delicate federal balance.
♦ Violation of Equality Principle – A sudden move to exceed 50% without full disclosure of data and compliance with the triple test is open to challenge as a breach of constitutional equality.
♦ Subversion of Presidential Power – Proceeding with an ordinance while the Bills are pending before the President could be viewed as undermining Article 200 and 201 processes.
Political Dimension
The urgency behind this ordinance appears linked to Panchayat elections and political gains among BC voters. Earlier attempts to pass similar laws were stalled at the central level, with state leaders even urging the Centre to include enhanced BC quota in the Ninth Schedule to shield it from judicial review.
Why Was the Education and Employment Bill Passed?
Passing two significant Bills—on education and employment—alongside Panchayat reservations indicates a broader BC empowerment strategy. However, pushing an ordinance
while Bills are with the President creates an impression of political expediency rather than constitutional propriety.
Legal Challenges
The proposed ordinance, if signed by the Governor, will face serious legal challenges for violating:
♦ Supreme Court precedents on reservation limits
♦ Article 213(1)(a) of the Constitution, and
♦ Principles of transparency and equality.
The controversy underscores a fundamental question: Can social justice measures be pushed through opaque, politically timed ordinances, bypassing constitutional safeguards? The answer will likely emerge in the courts in the coming months.
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