The Supreme Court hasn’t stayed the Rajasthan OBC reservation Bill, but has asked the state to ensure the 50 per cent cap isn’t crossed.

The Supreme Court has refused to stay the Rajasthan government Bill on reservation for the Other Backward Classes (OBC). However, it has insisted that the total reservation should not cross 50 per cent, and instructed the authorities to ensure this.

A bench comprising Chief Justice Dipak Misra, Justice A.M. Khanwilkar, and Justice D.Y. Chandrachud set aside the 9 November order of the Rajasthan High Court, by which it had stayed the OBC Reservation Bill, 2017.

The Rajasthan Backward Classes (Reservation of Seats in Educational Institutions in the State and of Appointment and Posts in Services under the State) Bill, 2017, proposes a five per cent increase in the OBC quota. The bill raises reservation for Gujjars and four other backward communities in Rajasthan from 21 per cent to 26 per cent.

Currently, Rajasthan reserves 49 per cent of seats in educational institutes: 16 per cent for Dalits, 12 per cent for Adivasis, and 21 per cent for OBCs. With this new 5 per cent category, reservation in the state now stands at 54 per cent – above the 50 per cent legal cap.

The Vasundhara Raje government attempted something similar in 2015 with the Special Backward Class (SBC) Reservation Act, 2015, but it was struck down by the Rajasthan High Court in December 2016.

The legal cap

The Supreme Court, in a 1992 order, had capped reservations in government jobs and education at 50 per cent. But in an order in July 2010, it allowed states to exceed the 50 per cent limit for reservation, provided they had solid scientific data to justify the increase.

Currently, two states are giving more than 50 per cent reservation, while two more have these quotas in the pipeline, waiting for nods from the Centre or the judiciary.

Tamil Nadu: Reservation is up to 69 per cent (SC-18 per cent, ST-one per cent, OBC-50 per cent), and was included in the Ninth Schedule. Laws under this schedule are beyond the purview of judicial review, even though they violate fundamental rights enshrined under Part III of the Constitution.

But a nine-judge bench of the Supreme Court in the I.R. Coelho case (2007) upheld the authority of judiciary to review any law, including those put in the Ninth Schedule.

Maharashtra: On 25 June 2014, the erstwhile Congress-NCP government had approved 16 per cent reservation for Marathas and 5 per cent for Muslims in government jobs and educational institutions. But the Bombay High Court put it on hold, saying the reservation ceiling cannot exceed 50 per cent, except in extraordinary situations and for extraordinary reasons.

In the case of public employment, 52 per cent reservation is in place for backward classes under a 2001 State Reservation Act.

Telangana: The assembly passed a Bill on 16 April 2017, giving a 12 per cent quota for socially and economically backward classes among the Muslims in educational institutions and government jobs. The Bill hiked the quota for Muslims from four per cent to 12 per cent, and the Scheduled Tribes quota from 6 per cent to 10 per cent, thereby taking the quantum of reservations in the state to 62 per cent.

Chief Minister K. Chandrasekhar Rao has made it clear that it is for the Centre to take a call on whether to include the Bill in the Ninth Schedule or not. Rao claimed in his speech to the assembly in November that Telangana will approach the Supreme Court in case the central government rejects the Bill.

Haryana: The Haryana Backward Classes (reservation in services and admission in educational institutions) Act, 2016, passed on 26 May 2016, gave 10 per cent reservation to Jats and five other communities, including Jat Sikhs, Muslim Jats, Bishnois, Rors, and Tyagis, under the special backward class category. It has given another 10 per cent reservation to economically backward persons from the general category, which took the total reservation to 67 per cent, exceeding the SC-imposed cap.

The Punjab and Haryana High Court, on 1 September 2017, upheld the law ensuring 10 per cent reservation for Jats and five other communities, but referred the decision on the extent of reservation to the State Backward Classes Commission. It stayed the implementation of these new quotas till a commission finalises the quantum. The commission has been given time till 1 March 2018.

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