Contrary to what the opposition is claiming, reservation to EWS Bill is legally and constitutionally valid

reservation, judicial, bill

Even as the Constitution (One Hundred And Twenty-Fourth Amendment) Bill, 2019 was passed by the Lok Sabha yesterday, two major arguments were made by the opposition with an intention to somehow corner the government. Even though an overwhelming majority of the opposition parties voted in support of the Bill, these parties argued that the Bill might not be able to stand judicial scrutiny and an even more absurd argument was that this is a mere political gimmick. Those who did not bother to bring a constitutional amendment in order to extend reservation benefits to the economically weaker sections of the society now started arguing that it is a mere political gimmick when the Modi government finally paved the way for such a provision.

It is manifestly clear that the opposition propaganda around the government move being a political gimmick is a ridiculous and senseless argument. When it comes to the issue of the present Bill standing the test of judicial scrutiny, one has to view reservations from a historical and legal angle. There are two main concerns when it comes to reservations for the economically weaker sections:

  1. Whether the reservations can exceed the 50% upper limit that has been prescribed by the judiciary?
  2. Whether providing reservation to the economically weaker sections regardless of caste considerations?

The first concern has been raised by many of those who have been arguing that the Bill which has been passed by the Lok Sabha might be hit by legal complications. It is true that the judiciary has prescribed the 50% ceiling on caste based reservations. The objective was that there should not be abysmally low number of seats left for the unreserved category. It has also been reaffirmed by the apex court in the landmark ruling, Indira Sawhney v Union of India, AIR 1993 SC 477. However, it is also true that in the same ruling, the Supreme Court had also stated, “While 50% 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 characteristical 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.” What is even more relevant is that the Court had also stated, “We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as ‘vertical reservations’ and ‘horizontal reservations’. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations that is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of the backward class of citizens remains – and should remain – the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.”

This leaves no doubt about the fact that the 50% ceiling which has been prescribed by the judiciary applies only to the reservations extended to the backward classes of citizens mentioned under Article 16 (4) of the Constitution of India. The economically weaker sections in the general category is an altogether different class of citizens and cannot be said to be included within the purview of the 50% ceiling prescribed for reservations with respect to the backward classes of citizens under Article 16 (4).

Coming to the second concern, i.e. if providing reservation to the economically weaker sections regardless of caste considerations would fail to stand judicial scrutiny, it is important to keep in mind that it is for the first time that a Constitutional amendment has been proposed to extend reservation to the economically weaker sections. The Narasimha Rao government had issued an Office Memoranda (OM) which had provided for 10% reservation for economically backward classes among higher classes. However, the decision failed to stand the judicial scrutiny. The Supreme Court had struck down the said Office Memoranda observing that to identify backward classes solely with reference of the economic status of the citizens would defeat the very object of Article 16 (4) of the Constitution.

It is clear that the present Constitution does not provide for reservation to economically weaker sections either under Article 15 (4) or Article 16 (4) of the Constitution. That being the case, there is no legitimate source of providing reservation to such economically weaker class of citizens by way of statutory provisions or administrative notifications. However, the Modi government by bringing a Constitutional amendment has changed the entire position. Once, the Constitution stands amended and a substantive provision is made for reservation to the economically weaker sections in the general category, any statutory provision or administrative notification to bring the same into effect will have a strong constitutional basis. It will no longer be hit by any legal complications and will in all probability stand the test of judicial scrutiny. Such statutory provision, if enacted, after the Constitution is accordingly amended, will have a legitimate source of validity.

It is, thus, clear for the reasons aforesaid, that the opposition is illogically trying to create a sense of pessimism around the judicial scrutiny of the Bill. The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019 passed by the Lok Sabha is legally valid and sound. The entire propaganda about legal complications is, therefore, mere concoction of the true legal position.