A 9-judge bench in 1992, while upholding the reservation for OBCs, had held that the reservation be limited to 50% and that Article 15 only allowed for reservation for socially or educationally backward, and not economically backward classes
The BJP-led government’s decision to introduce 10% reservation for economically weaker sections of the general category powered by a constitutional amendment has revived one of the democracy’s oldest debates: if reservations beyond caste and the 50% ceiling can be a reality. Even as the 124th constitutional amendment bill was cleared in both houses of the parliament, it still faces major roadblocks ahead.
As it is a constitutional amendment bill, it will need approval in half the state assemblies even after being cleared in the Parliament. Further, it is likely to invite challenges in the court of law. Sanjay Hegde, a senior advocate of the Supreme Court, said that a 13-bench judge in 1973 had ruled that the constitution can be amended but not in a manner that changes the basic structure of the constitution. “This amendment is against the equality of opportunity that is part of the basic structure of the constitution. By taking reservation over 50%, it is making reservation the rule and open competition the exception,” said Hegde.
The Articles 15 and 16 allow the State to give reservations only to Scheduled Castes, Scheduled Tribes and socially or educationally backward classes. A 9-judge bench in 1992, too, while upholding the reservation for OBCs, had held that the reservation be limited to 50% and that Article 15 only allowed for reservation for socially or educationally backward, and not economically backward classes. It had noted that reservation only on economic basis, and without any scientific data on historical discrimination, does not hold in the light of the constitution. The bench had struck down PV Narsimha Rao government's decision to give 10% quota to economically backward classes among the general category. However, union minister Arun Jaitley on Tuesday said that Rao’s decision could not stand the legal test because it did not have the constitutional backing. He also said that the 50% cap applied only to caste-based reservations.
MPs of DMK and AIADMK also questioned the government on whether it had scientific data to justify the 10% reservation. AIMIM MP Asaduddin Owaisi, one of the three MPs who voted against the bill in Lok Sabha, said that the constitution does not recognize economic backwardness. Congress MP Kapil Sibal, too, questioned the data on the basis of which the 10% figure and Rs 8 lakh annual income bar was set. The proposed reservation includes all families with an annual income of less than Rs 8 lakh.