Bill has already been passed by the LS and RS, and has got the President’s nod.
New Delhi: Despite a petition being filed in the Supreme Court by an organisation called Youth for Equality and Kaushal Kant Mishra, challenging the Constitution amendment bill that promises 10% reservation for economically weaker sections (EWS) in the general category, experts don’t see any legal and constitutional hurdles to the bill becoming law.
The 124th Constitutional Amendment Bill, which was introduced by the Narendra Modi government to grant a 10% reservation in education and government jobs to economically weak individuals belonging to the general category across religions, has already been passed by both the Lok Sabha and Rajya Sabha. President Ram Nath Kovind on Saturday also approved the constitutional amendment.
The reservation for economically weaker sections (EWS) in the general category will be given without tampering with the existing quotas for SCs, STs and OBCs.
Speaking on the issue, renowned constitutional expert Subhash Kashyap told The Sunday Guardian: “One can go to court to question the EWS policy and it will depend upon the court to decide whether the policy violates any provision of the Constitution or not, but personally it seems to me that the 124th amendment does not violate any provision of the Constitution and so there is not much to it to oppose.”
“The present position is that both Houses have passed the bill with the requisite majority and now it will go the President. The President has also given his nod and it will be part of the Constitution. Further, the government will frame the necessary rules and regulations to give effect to it. They can also consider having an Act or under it (the Constitution), if they feel the Act is not necessary, they can go ahead with rules and regulations to implement it,” Kashyap said.
Those who say that the bill is unconstitutional and maintain that it would face the Supreme Court’s hurdle due to cap on reservation at 50%, cite the judgment of the Supreme Court in 1992 in the Indra Sawhney Etc vs Union of India and Others case, in which the apex court had struck down the P.V. Narasimha Rao government’s attempt to introduce a 10% reservation for economically backward classes, saying that the quota should not exceed the 50% cap. Kashyap, however, does not seem to agree with such apprehensions and said that the government would meet the Supreme Court hurdle as the Indra Sawhney judgment is not applicable to the current EWS quota bill.
Kashyap said: “The 50% cap is not part of the Constitution and that is just a judgment of the SC. The SC had also accepted that there may be exceptions and there have been exceptions for where the quota cap was not maintained. For example, in Tamil Nadu, the quota is already 69% and in Karnataka too, it is over 50%. Also, at the time of the Indra Sawhney judgment, the Constitution had not been amended and this time, the Constitution has been amended and the provisions of the quota are incorporated in the Constitution, so the judgment will not apply in the current case. The constitutional provisions will supersede the SC judgment. Also, the 50% cap was not for class based reservation.”
Besides the cases of Karnataka and Tamil Nadu, the Gujarat government had already brought an ordinance to provide 10% quota for EWS in the forward castes. However, in August 2016, the Gujarat High Court had quashed this ordinance. The appeal against that judgment is pending in the Supreme Court. At present, reservations in India account for a total of 49.5%. If the 10% extra reservation for EWS is also taken into account, it would be 59.5%. However, in Kashyap’s view, the criterion which the government has set to provide quota might pose challenges for the government and it is likely to face many questions.
“There may be objections on the ground why only 10% reservation for the larger group of population that is being said to be covered under the given criterion. It is a fact that 90-95% people in India earn less than Rs 8 lakh per annum and thus will be covered under the provision. Also, the reservation is done for a minority group and not for the majority population, so these are the challenges the government has to deal with.”
Kashyap added, “The politics of reservation is different from the policy of reservation and care has to be taken that we don’t indulge in the politics of reservation. We should try to stick to the policy of reservation. The purpose of the policy is to bring up the disadvantage or to provide equal opportunity to various groups of the people who are disadvantaged on the basis of economic, social and education background etc. If the reservation becomes a vote bank policy, then as a citizen I think that it is bad.” The government has put forth a set of eligibility criteria for those who intend to be beneficiaries of the new quota scheme. Economic backwardness will be determined by family income, agricultural land, residential house and residential plot. Critics of the Modi government say that reservation for EWS for upper castes and faiths is an gimmick ahead of the general elections. However, experts have different views. Explaining the need for EWS quota for forward castes and faiths, Dr Pravesh Kumar, Assistant professor at Jawaharlal Nehru University (JNU), said: “The S.R. Sinho commission report stated that 35.3% of those in the General Category didn’t possess any land as against 39.1% of OBCs. The fact is that the General Category upper castes were similar to OBCs in backwardness which was measured by the Sinho commission on a large number of parameters; therefore, the government was forced to come up with a certain policy for them. The policy was needed to counter the increasing counter mobilisation against reservations for one or two sections of society.”
The benefits of the reservation were successively enjoyed only by a few communities (or families), excluding the truly deserving ones. Even 70 years after Independence, the demand for reservation has only increased.
The Narendra Modi government’s decision to provide 10% reservation for “poor” upper castes appears to be based on a 2010 report which found that there was not much difference between the economic conditions of those in the general category and those in the other backward classes (OBCs).