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10% reservation for the poor: Contrary to claims, here is why it might not encroach on the 50% reservation cap

The Court and the Government would essentially find itself in the unchartered territory since the matter of reservation based on the economic background based on Article 15 (6) and Article 16 (6) has never been discussed.

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Nupur J Sharma
Editor, OpIndia.com since October 2017

The Modi government, in a landmark decision, introduced the 124th Constitutional Amendment Bill that provided for 10% reservation for economically backward classes that have not been included in any reservation category so far.

The bill amends the articles 15 and 16 of the Constitution of India, making provision for reservation for educational institutes and jobs respectively. This reservation will be an addition to the existing 50% reservation provided for people from Scheduled Castes, Scheduled Tribes and Other Backward Castes. The economical backward has been defined as a family with an annual income below Rs. 8 lakhs, apart from clauses on landholding. The ₹8 lakh limit is at per with the existing limit for the creamy layer of OBCs.

The reservation in higher educational institutions will be extended to private institutions also, whether aided or unaided. But the minority educational institutions will be exempt from the reservation as per provisions of article 30 of the constitution.

Perhaps owing to political considerations, Congress party, reluctantly, supported the bill as well. However, soon after the 124th Constitutional Amendment Bill was passed, the prevalent narrative evolved into how this reservation might not pass Judicial scrutiny as it breaches the 50% reservation limit which was decided upon by the Indra Sawhney judgement.

To understand the ramifications of the 50% reservation cap, one must look back at the Indra Sawhney judgement and evaluate the basis of that judgement.

The Mandal Commission Report of 1980 was tabled in Parliament on two occasions, viz 1982 and 1983, however, the court said, no action had been taken on the recommendations on the report until an office memorandum dated 13.08.1990.

The Office Memorandum stated that after considering the Mandal Commission Report, 27% of the vacancies in civil posts and services under the Government of India shall be reserved for the Socially and Economically Backward Classes. This was followed by an Office Memorandum of 25.09.1991, by which, within the 27% of vacancies, preference was to be given to candidates belonging to the poorer sections of the Socially and Economically Backward Classes; and 10% vacancies were to be reserved for Other Economically Backward Sections who were not covered by any of the existing schemes of reservation.

The 1991 office memorandum

In the Indra Sawhney judgement, while the 27% reservation was upheld, the 10% reservation in civil posts and services under Government of India proposed for economically backward section who are not covered by any of the existing schemes of reservations was struck down.

The basis for striking down the 10% reservation for the economically backward, was that per Article 15 (4) and Article 16 (4) of the constitution referred only to social backwardness.

The judgement read (para 774)

Part of the Indra Sawhney judgement

Thus, it stands to reason that the basis of the Court striking down the 10% reservation for economically backward categories was solely on the basis of Article 15 (4) and Article 16 (4) and the 50% reservation cap that was set by the Court was also solely for caste-based reservations.

It also stands to reason that there was no provision in the constitution that would form the basis of a 10% reservation for the economically backward, as the existing provisions were to be applicable solely for caste-based reservations.

The Modi government, for the purpose of the 124th Constitutional Amendment that provides 10% reservation to the economically backward, have not altered or depended upon Article 15 (4) or Article 16 (4).

The Modi government has introduced a constitutional amendment adding Article 15 (6)

124th Constitutional Amendment Bill

And Article 16 (6).

124th Constitutional Amendment Bill

The Modi government has effectively created an entirely new class of reservation that will need to be evaluated by the Court independently without caste considerations and without the limits of the 50% cap that has been employed for caste-based reservations.

The 50% reservation that was set by the Indra Sawhney judgement was laid down when Article 15 (6) and Article 16 (6) did not exist, hence, if challenged, the current 10% reservation would need to be evaluated differently without taking into consideration the 50% reservation cap and hence, Indra Sawhney judgement may be inapplicable to the current issue.

In fact, in the RAM SINGH & ORS. VERSUS UNION OF INDIA case where the Court had struck down Jat reservation, Justice Gogoi had made pertinent observations regarding reservations for economically backward.

In paragraph 53 of the judgement, Justice Gogoi and Rohinton Fali Nariman had observed (emphasis mine):

“Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political. Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action.

The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India is too significant a development to be ignored. In fact, it is a pathfinder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness. An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated. It is the identification of these new emerging groups that must engage the attention of the State and the constitutional power and duty must be concentrated to discover such groups rather than to enable groups of citizens to recover “lost ground” in claiming preference and benefits on the basis of historical prejudice.”

In the judgement, Justices Gogoi and Rohinton Fali Nariman had observed that a state policy that keeps in mind only historical injustice would result in under-protection of the most deserving backward class of citizens and that the State must come up with a yardstick that helps citizens recover lost ground regardless of caste considerations.

They had further gone to assert in Paragraph 54 (emphasis mine):

style=”text-decoration: underline;”>”The perception of a self-proclaimed socially backward class of citizens or even the perception of the “advanced classes” as to the social status of the “less fortunates” cannot continue to be a constitutionally permissible yardstick for determination of backwardness, both in the context of Articles 15(4) and 16(4) of the Constitution. Neither can any longer backwardness be a matter of determination on the basis of mathematical formulae evolved by taking into account social, economic and educational indicators. Determination of backwardness must also cease to be relative; possible wrong inclusions cannot be the basis for further inclusions but the gates would be opened only to permit entry of the most distressed. Any other inclusion would be a serious abdication of the constitutional duty of the State. Judged by the aforesaid standards we must hold that inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.”

While striking down the reservation for Jats, Justices Gogoi and Nariman had mentioned categorically that “the gates would be opened only to permit entry of the most distressed”.

In this judgement, the Court made clear that while politically organised groups like the Jats should not be given reservation and that caste can no longer be the only marker of ‘backwardness’, for the most distressed, the State should take affirmative action.

In that sense, a 10% reservation for economically backward not only conforms to what Justice Gogoi had observed but also draws its power from a Constitutional Amendment that doesn’t rely on Article 15 (4) and Article 16 (4) as before. Hence, it won’t be struck down and also won’t exceed the 50% reservation cap which is based on caste determinants.

If the 124th Constitutional Amendment is thus challenged in the court, the Court will need to ask itself several questions, not depending on the Indra Sawhney judgement.

The Court and the Government would essentially find itself in the unchartered territory since the matter of reservation based on the economic background based on Article 15 (6) and Article 16 (6) has never been discussed. The Court will essentially need to decide if the Bill is challenged, whether it is willing to increase the reservation cap to 60%. This in itself might not be a point of contention since the limit of 50% exists essentially only on paper as many states have far exceeded the cap in terms of reservations.

The Court would also need to consider the long-standing debate between Proportional equality and Balanced equality. If Proportional equality is considered, the reservation of 10% for a population that far exceeds that number proportionally should not raise eyebrows. Even if the Court considers Balanced equality, it stands to reason that the distressed sections that have not had equal access to opportunities as the affluent class must be the recipient of affirmative action of the State.

Thus, while these arguments would only be considered if the Bill is challenged in the Court of law, judging by the precedents in place, the current reservation would not breach the 50% reservation limit set by the Indra Sawhney judgement and if at all, would need to be evaluated afresh by the Court of law.

(This article was written with inputs from Advocate J Sai Deepak. His debate on the subject can be watched here. Finance Minister Arun Jaitley’s response in the parliament can be accessed here.

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Nupur J Sharma
Editor, OpIndia.com since October 2017

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