How Rajasthan government and Kirori Singh Bainsla are fooling each other

The Gujjars have used unconscionable force to demand Special Backward Class (SBC) status for themselves. The Rajasthan government has used excessive guile to fool the Gujjars by granting five per cent over the 50 per cent limit and asking the Centre to put the legislation in the Ninth Schedule. Both sides are as happy as the agreement seems constitutionally damaged.

First, the facts. In September 2006, the Gujjars wanted Scheduled Tribe status, forming a "tiger force" in October 2006. From May 29 to October 5, 2007, they created havoc with five deaths and destruction of public property. In May 2008, 20 persons were killed when the police opened fire on violent demonstrations. On July 16, 2008, Rajasthan passed a Bill creating special quotas for Gujjars and others (five per cent) and economically backward (14 per cent) which awaited implementation. Then another agreement on May 5, 2010 for one per cent for Gujjars, Gadias, Lohars, Rebaris and Banjars to keep within the limit of 50 per cent.

A futile farce

Agitation in 2010 did not result in a solution. More agitation followed in 2014. Then a high court case in 2014 where the attorney general was going to appear for them but didn't. Then the May 2015, agitation and a spurious solution that the five per cent in excess of the 50 per cent will be enacted in a statute which will be put in the Ninth Schedule of the Constitution on the assumption that this solution would be immune from judicial review.

This tragedy has, and will, end in farce. In the first place, blackmail by violence is impermissible. India has a huge number of possible protestors with much worthier causes. As many as 194 million are hungry. More than 300 million live below the poverty line and another 100 million hover just above it. What makes the Gujjars so special? Marauding Gujjars creating mayhem with the power to dictate terms are not backward. In 2009, the Supreme Court took a dim view of similar agitations and called for enforcement and compensation from the marauders.

Is this agreement spurious? Firstly, can you go beyond 50 per cent for backward classes? In the Mandal case (1992), the SC warned that the 50 per cent reservation barrier cannot be crossed except in very special cases of deprivation which does not apply to Gujjars. Besides, to put the proposed Rajasthan statute in the Ninth Schedule to obviate judicial review.

This was the technique used by Tamil Nadu for 69 per cent as Item 257A in the Ninth Schedule. This was challenged by Voice Consumer Forum (1993) whose lawyer was attacked and beaten. For some time, the SC maintained an uneasy balance by adjusting seats. As it happened, Backward Classes in considerable numbers in Tamil Nadu were also getting into the merit lists outside their quota. This increased their presence in colleges and services by well over 50 per cent. The big question is whether putting a statute in the Ninth Schedule will prevent judicial review by courts. In Coelho's case (2007), nine judges of the SC protested against the "unchecked and rampant exercise" of putting statutes in the Ninth Schedule.

No protection

Originally, the Ninth Schedule was to protect agrarian reform when only 13 statutes were included. This list was expanded to 284. According to the SC all statutes before April 24, 1973 (the date of the famous Basic Structure case) will be protected, but all statutes after that will be tested by the very rights they want to bypass.

The Tamil Nadu and other cases hiding behind the Ninth schedule will be decided on the basis of Coelho - case by case, statute by statute and tested for excessiveness. The case of the Gujjars is not exceptional. It is one created by blackmail and mayhem without any principles to redeem it. Recently, in the Jat case, justice Gogoi set aside the inclusion of Jats as OBCs, other than ST and SC. Surely this will apply to the inclusion of Gujjars as Special OBCs.

Judicial scrutiny

Kirori Singh Bainsla, the Gujjar leader originally wanted Scheduled Tribe status. The inclusion in the Scheduled Tribe list is well nigh impregnable from courts which do not go behind the classification. But any form of other or special backward classes will be subject to judicial scrutiny in the same way as the inclusion of Jats. It is more or less inevitable that Gujjar reservation will be put down in the same as the Jat reservation. The Rajasthan government and the Gujjar leadership are fooling each other.

The Rajasthan HC was right to ask the government to stop the Gujjar agitation and the ugly form it took. The Centre was ready to send it forces. I believe in free speech and protest. But the Gujjar agitation takes us beyond democratic frontiers - a terrorising protest without a legitimate cause. The governments of the state and the Centre should compute the losses caused by the agitation and ask the Gujjars to pay up.