Amendments to Article 15 and 16, passed by Parliament, aimed at introducing 10 per cent reservation for economically poor forward classes
A day after the Parliament passed the Constitution (124th Amendment) Bill that would enable the Centre to carve out an additional 10 per cent quota in educational institutions and government jobs for the economically poor upper castes, a petition challenging the legislation has been filed in the Supreme Court.
The petition, filed by NGO Youth for Equality, has not yet been listed for admission but is possibly the first of many legal challenges that Prime Minister Narendra Modi’s plan for granting reservations on the basis of economic backwardness is likely to face in the days to come.
The Bill was passed by the Lok Sabha on January 8 and in the Rajya Sabha the following day after the Treasury and Opposition benches united in its support.
The passage of the Bill paves the way for Modi’s government to introduce a 10 per cent reservation, over the existing 49.5 per cent reserved for scheduled castes, scheduled tribes and other backward classes, for “the economically weaker sections of society in higher educational institutions, including private institutions” and in government jobs. The amendment seeks to negate the cap of 50 per cent on reservations that was set by the Supreme Court through various judgments, most notably in the Indra Sawhney case, and also the constitutional and legal obligation of not providing reservations purely on the basis of one’s economic backwardness.
Since Article 15 and 16 – which now stand amended – are not subject to the requirements of constitutional amendments laid out in Article 368 (2) – ratification by at least half of the state legislatures following passage by Parliament – the government is now free to issue an executive order granting the new quota.
Whether the amendments, specifically meant to benefit the upper caste and electorally significant communities like the Thakurs, Jats, Marathas and Patels is legally sustainable is a question that is now being hotly debated.
The petition by Youth for Equality, has challenged the amendments to Article 15 and 16 on grounds that they violate “one or the other basic feature of the Constitution, and hence such a manifest and obvious violation of the Constitution ought to be prevented.”
Many Opposition leaders and legal experts had pointed out that the amendments and the government’s anticipated order on granting the new quota will not stand legal scrutiny. Congress MP Kapil Sibal, while participating in the debate on the Bill in Rajya Sabha on January 9, had pointed out three foreseeable hurdles: “first, is the complete non- application of the mind on the part of the government in introducing this Bill; second, is the constitutionality of this Bill; third, is the implementation of this Bill.” Sibal said that the Bill violates the top court’s Indra Sawhney verdict as also the Basic Structure doctrine enumerated in the Keshavananda Bharati judgment. Nonetheless, he went on to vote in favour of the Bill.
The government has, predictably, maintained that the amendments are legally sustainable. Union law minister Ravi Shankar Prasad has said that the “basic structure of the Constitution has nothing to do with reservations… In this Bill we are adding a clause to Article 15 where reservation will be given in educational institutions and employment and under Article 16 to public employment. Our reservation will not touch the existing reservation for the SC, ST and the OBCs.” Prasad also dismissed the Opposition’s contention that the Bill violates the Indra Sawhney verdict.
It is pertinent to enumerate that the majority verdict in Indra Sawhney, passed by a nine-judge Constitution Bench headed by then Chief Justice MN Venkatachaliah, had categorically said: “…Constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50 per cent.” It had added: “a backward class cannot be determined only and exclusively with reference to economic criterion.” Ever since, several states governments have tried to breach the 50 per cent cap, but with the exception of Tamil Nadu where the quota now stands at a solid 69 per cent, none of these efforts have stood legal scrutiny.
—India Legal Bureau