Centre approves 10% reservation for economically weaker upper castes: A look at constitutional validity of move

On Monday, the Union Cabinet approved 10 percent reservation in jobs and education to those economically weaker among the 'general category' who till now have never benefited from quotas.

Shishir Tripathi January 08, 2019 12:21:49 IST
Centre approves 10% reservation for economically weaker upper castes: A look at constitutional validity of move
  • On Monday, the Union Cabinet approved 10 percent reservation in jobs and education to those economically weaker among the 'general category'

  • Currently, the Centre provides reservation to SC, ST and OBCs that together make up 49.5 percent reservation

  • Providing quotas for the economically weaker section among the 'general category' will take total reservation beyond the capped limit of 50 percent

On Monday, the Union Cabinet approved 10 percent reservation in jobs and education to those economically weaker among the 'general category' who till now have never benefited from quotas. While this decision by the Narendra Modi government is being analysed through a political prism, its constitutional validity also needs to be discussed.

Article 15 of the Indian Constitution — that ensures equality to all citizens and prohibition of discrimination on grounds of religion, race, caste, sex or place of birth — also provides that nothing in this article "shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes".

Similarly, Article 16, while ensuring equality of opportunity in matters of public employment, states that "nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State".

Centre approves 10 reservation for economically weaker upper castes A look at constitutional validity of move

File image of the Supreme Court of India. PTI

These two Articles while being the guarantors of equality, also form the basis of any 'positive discrimination' by the State, commonly known as 'reservation'. But to ensure that 'exception' does not override the 'rule', the Supreme Court of India through various landmark judgments has provided certain riders and principles that should be taken into consideration by lawmakers when framing any policy on reservation or granting reservation to any section of people. And the '50 percent' rule is one such rider that the apex court has put forward with regard to the reservation policy in India.

It is being held by the apex court that the total reserved quota should not exceed 50 percent, except in some extraordinary situations.

Currently, the Centre provides reservation to the Schedule Classes (SC), Schedule Tribes (ST) and Other Backward Classes (OBC) that together make up 49.5 percent reservation. And with the Modi government's decision to provide a 10 percent quota in jobs and education to the economically weaker section among the 'general category', the total reservation will go much beyond the capped limit of 50 percent and will face the litmus test of legality and constitutional validity.

In the Oxford Handbook of The Indian Constitution, in a chapter on 'Reservations', Vinay Sitapati, assistant professor of political science and legal studies at Ashoka University, writes that the logic for imposing the 50 percent rule is based on the three different visions of the relationship between affirmative action and equality provisions of the Indian Constitution.

The first vision is what Sitapati explains as a "balance between competing constitutional principles of formal equality, social justice and efficiency". One of the consequences of the vision is "to see Article 16(4) — which permits reservations in employment — as being an exception to the formal equality provision of Article 16 (1)".

"Since the exception cannot be greater than the rule, reservations could not exceed 50 percent," writes Sitapati.

Further, it is also important to refer to some landmark cases in relation to this 50 percent rule, to understand the fate of the decision of Modi government, when it faces legal scrutiny. Dwelling on another perspective on relations between the two parts of Article 16 that have a clear bearing on reservation policy, Sitapati writes, "Article 16 (4) is merely an elaboration of 16 (1), which includes within it the idea that unequals cannot be treated unequally. Seen this way, the reservations do not limit the equality provisions of the Constitution, but merely elaborate upon them. Therefore, a 50 percent limit has no constitutional justification".

This vision has been endorsed to a certain extent by the apex court in the NM Thomas and ABSK Sangh case. However, in the famous Indra Sawhney case, the apex court, as pointed out by Sitapati, tried to harmonise the 'rule' and the 'exception' by declaring that while the two sections of Article 16 are inextricably linked, the balancing of various provisions of constitution is a must, hence the total quota cannot cross the 50 percent mark.

In the MR Balaji judgment too, the Supreme Court has held that special provisions must be within reasonable limits. Over the years, some states have provided reservations that have crossed the capped limit and are in contravention of the apex court's judgment. Tamil Nadu provides 69 percent reservations. The state has largely relied upon the exception provided to the 50 percent rule in the Indra Sawhney case.

The apex court, in the Indra Sawhney case, had held that, "While 50 percent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristically to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out."

However, as the judgment itself defines to an extent as to what the 'exception' can be, it is the judiciary's final review that will decide whether the 'exception' falls within the idea and definition of the 'exception' as articulated and conceived the apex court.

The states that had exceeded the 50 percent limit have also resorted to another way to shield their reservation policy from judicial review by placing them in Ninth Schedule of the Constitution that was meant to keep certain legislations beyond the ambit of judicial scrutiny.

Now this shield also stands exposed to judicial review as in 2007, in the landmark IR Coelho versus State of Tamil Nadu, the apex court held that even the laws placed under Ninth Schedule are subject to judicial review. However, the same Supreme Court has allowed Tamil Nadu to continue with its 69 percent reservation upholding the legality of some of its argument.

There are several apex court judgments, constitutional principles, precedents and legal arguments that go in favour of or against of breaching the 50 percent rule to be picked depending upon which side of the fence — that reservation policy has clearly created over the years — one is placed.

As of now, for the government to implement its decision, a constitutional amendment will be required, but at same time a judicial review of that decision can be, and by all possibility will be, on the anvil.

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