New Delhi: The 124th constitution amendment providing a 10% quota for “economically weaker sections” from the general category of the population – primarily upper caste Hindus, but also religious minorities – has already been challenged in the Supreme Court.
As legal experts have pointed out, the Modi government’s decision would appear to face two insurmountable obstacles laid down by the Supreme Court itself in its landmark 1993 judgment in Indra Sawhney vs Union of India. These are:
- that the total number of reserved seats/places/positions cannot exceed 50% of what is available, and
- that under the constitutional scheme of reservation, economic backwardness alone could not be a criterion.
At stake was an attempt by the then Congress government headed by Narasimha Rao to provide 10% reservation for general category citizens based solely on economic criteria – the very same proposal moved by Modi. The only difference is that the Rao government sought to use an executive order in September 1991 while the Modi government has chosen the legally more secure route of a constitutional amendment.
It specifically amends Article 15 (which prohibits discrimination on the basis of religion, race, caste, sex, place of birth) and Article 16 (equality of opportunity) to insert new clauses that allow the government to make “special provision for the advancement of any economically weaker sections of citizens” other than SC/STs and OBCs.
The Supreme Court may uphold the validity of these new grounds for reservation or declare it ultra vires of the constitution. And since the 1993 ruling was by a nine-judge constitution bench, the bar on quotas beyond 50% would need to be overturned by a larger one if the NDA government is to have any hope of implementing its promise.
That Prime Minister Narendra Modi is aware of at least 50% barrier is evident from an election campaign speech he made in Bihar in October 2015.
Modi spoke about the Supreme Court’s ruling and said anyone promising reservations beyond the cap was being “dishonest”.
Appended below are key extracts from the Supreme Court’s judgment in Indra Sawhney:
The 50% cap on reservations for all categories
94A. […] Clause (4) [of Article 16 of the constitution] speaks of adequate representation and not proportionate representation. Adequate representation cannot be read as proportionate representation. Principle of proportionate representation is accepted only in Articles 330 and 332 of the Constitution and that too for a limited period. These articles speak of reservation of seats in Lok Sabha and the State Legislatures in favour of Scheduled Tribes and Scheduled Castes proportionate to their population, but they are only temporary and special provisions. It is therefore not possible to accept the theory of proportionate representation though the proportion of population of backward classes to the total population would certainly be relevant.
Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter.
From this point of view, the 27% reservation … in favour of backward classes is well within the reasonable limits. Together with reservation in favour of Scheduled Castes and Scheduled Tribes, it comes to a total of 49.5%. In this connection, reference may be had to the Full Bench decision of the Andhra Pradesh High Court in Narayan Rao v. State 1987 A.P. 53, striking down the enhancement of reservation from 25% to 44% for O.B.Cs. The said enhancement had the effect of taking the total reservation under Article 16(4) to 65%.
It needs no emphasis to say that the principal aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision – though not an exception to Clause (1). Both the provisions have to be harmonised keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) – conceived in the interest of certain sections of society – should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being “confined to a minority of seats” (See his speech in Constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is, thus clear that reservation of a majority of seats was never envisaged by the founding fathers. Nor are we satisfied that the present context requires us to depart from that concept.
From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in Clause (4) of Article 16 should not exceed 50%.
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 main stream of national life and in view of conditions peculiar to and characteristic 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.
In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.
Reservation on economic backwardness alone not allowed
688. Reservation, for, ‘economically backward sections of the people who are not covered by any of the existing schemes of reservation’, again, raises an important issue.
De facto difficulties in determining such backwardness stands established by failure of the government to evolve any workable criteria even after lapse of one year since, 25th September, 1991, the date on which the order dated 23rd August 1990 directing reservation for backward class was amended and it was announced that, ‘the criteria for determining the poorer sections of the SEBCs or the other economically backward sections of the people who are not covered by any of the existing schemes of reservations are being issued separately.’
But the de jure hurdles appear, even, greater. Any reservation resulting in curtailing right of equal opportunity is to withstand the test of equal protection or benign discrimination. Latter has been permitted for a class which had suffered injustices in the past and is suffering even now. It is an atonement of past segregation and discrimination such as Negroes in America and SC/ST of our country. And is being extended even to those who could legitimately be considered to be backward class.
Since Article 16(4) has a constitutional purpose and is to operate only so long the goal is not achieved, economic backwardness does not qualify for such protective measure. As even if such a class or collectivity is held to fall in the broader concept of the expression backward class of citizens it would not be eligible for the benefit as it would be incapable of satisfying the other mandatory requirement of being inadequately represented in services without which the State cannot have any jurisdiction to exercise the power. Article 16(4) thus by its nature, and purpose cannot be applicable to economically backwards, except probably when a proper methodology is worked out to determine inadequacy of representation of such class.
689. Is it possible to reserve under Article 16(1)? Detailed reasons have been given, earlier, against any reservation under cover of doctrine of reasonable classification. Eradication of poverty which, ‘is not to be exalted or praised, but is an evil thing which must be fought and stamped out’ is one of the ideals set out in the Preamble of the Constitution as it postulates to achieve economic justice and exhorts the State under Article 38(2) to, ‘minimise the inequality of income’. All the same can the State for this purpose reserve posts for the economically backwards in service?
Right to equal protection of laws or equality before law in, ‘benefits, and burdens’ by operation of law, equally, amongst equals and unequally amongst unequals is firmly rooted in concept of equality developed by courts in this country and in America. But any reservation or affirmative action on economic criteria or wealth discrimination cannot be upheld under doctrine of reasonable classification.
Reservation for backward class seeks to achieve the social purpose of sharing in services which had been monopolised by few of the forward classes. To bridge the gap, thus, created the affirmative actions have been upheld as the social and educational difference between the two classes furnished reasonable basis for classification. Same cannot be said for rich and poor. Indigence cannot be rational basis for classification for public employment. Any legislative measure or executive action operating unequally between rich and poor has been held to be suspect.
A provision requiring a person to pay for trial manuscript before filing criminal appeal was struck down in Griffin v. Illinois 351 US 12 (195) as it amounted to denial of right of appeal to poor persons. In Harper v. Virginia Board of Elections 383 US 663  Poll tax for voting was invalidated as, ‘wealth, like race, creed or colour, is not germane to one’s ability to participate intelligently in the electoral process’. Protection was given to the appellants in effect or consequence of equal protection clause.
Duty of State to protect against deprivation due to poverty should not be confused with States obligation to treat everyone uniformly and equally without discrimination. Protection against application of law due to difference in economic condition, cannot be equated with classification based on disproportion in wealth. Former is in realm of justice and fairplay whereas latter is equal protection to which every one is entitled. In the former unjust application of law may be cured by removing the offending part and thus apply the law uniformly to rich and poor. Whereas in latter the classification has to be justified on the nexus test. Poverty may have relevance and may furnish valid justification while dealing with social and economic measure. Any legislation or executive measure undertaken to remove disparity in wealth cannot be suspect but a classification based on economic conditions for purposes of Article 16(1) would be violative of equality doctrine.