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Adding up the reservation numbers

The 124th Amendment and a recent Government notification will have to run the gauntlet of the Indra Sawhny judgment,
says M K S Menon

M K S Menon | KOLKATA |

Reservations in admission to educational institutions and for job opportunities is no doubt a tool to manipulate the vote bank but at the same time we cannot ignore the fact that in India still a substantial chunk of the population is facing oppression on account of cultural backwardness. Every election witnesses the ugly tactics adopted in their manifestos by various political parties to which I don’t believe that there can be an exception. My endeavour today is to analyse the outcome of the 124th Amendment to the Constitution of India whereby Articles 15(6) & 16(6) were added to the existing Article 15 & 16 in Part III of the Constitution and the subsequent bill dated 26 July 2021 implementing the EWS quota. The division of power between the legislature, the executive and the judiciary is foremost ‘check and balance‘ adopted in our Constitution to achieve the goals enshrined in the preamble. The caste divide was the biggest challenge faced by the founding fathers of our Constitution when they decided to build the backbone of our political system. They wanted to provide for caste reservation for a maximum period of 10 years and the original Articles 15 and 16 provided reservation only for the first 10 years of the formation of our republic. However, it has continued even till date, i.e even after 70 years. Here I wish to highlight the alarming argument raised before the Constitution Bench in the case of the ‘Marathas’ which culminated in the judgment of the bench headed by Justice Ashok Bhushan (Jaishri Laxmanrao Patil vs The Chief Minister) on the point whether the Maratha community needed reservation. The Bench struck down the Maharashtra legislation by declaring that it could not support a movement aiming at caste rule. Way back in 1992, after tremendous effort and deliberation, a nine-judge bench of the Supreme Court rendered its landmark judgment in the case of ‘Indra Sawhney’ and the same is considered to be the touchstone of equality in the field of reservations. By aligning three Articles – namely Articles 14, 15 and 16 – it was held that any reservation beyond 50 per cent of the number of seats to be filled shall be in violation of Part III of the Constitution, especially Article 14 qua meritorious candidates, which shall affect the ‘Basic structure Doctrine’ enshrined in the Kesavananda Bharati case. After almost 30 years, recently in 2019, the Central government came out with the 124th Constitutional amendment whereby Articles 15 and 16 were amended and a Sub- Article (6) was incorporated in both, with an intention to address the demands of economically weaker but socially forward sections of society. The Constitution of India does not in so many words prescribe a 50 per cent limit for reservation but the Hon’ble Supreme Court by interpreting the Constitution and by applying the principles of the ‘Basic Structure Doctrine,’ held that if any reservation exceeds 50 per cent of the available vacancy, then it violates Article 14 qua the meritorious candidates. The latest notification which came on 26 July 2021 provided reservation of 27 per cent for OBC and 10 per cent for EWS in educational institutions. If this is implemented, no doubt Indra Sawhney’s judgment shall stand violated because the total reservation will cross the 50 per cent limit [15%(SC)+ 7.5%(ST)+27%(OBC) + 10%(EWS = 59.5 per cent]. The argument on behalf of the Central Government would be that these seats were created in addition to the existing reserved seats so as to address the grievance of EWS because Article 15(6) as amended vide the 124th Constitutional amendment provides for it. I believe that it is not that simple a proposition to get over the Constitutional challenge based on Indra Sawhney. The 124th Constitutional Amendment providing for reservation based on economic backwardness is now under the scrutiny of the Hon’ble Supreme Court and it has been referred to a five-Judge Bench. I am of a strong view that the Constitutional Amendment can survive the Twin test of ‘basic structure doctrine’ but I am stating this with a caveat – actual implementation of the 124th amendment is a herculean task, because no political party would ever dare to disturb the existing caste quotas to accommodate 10% EWS. If EWS quota has to be introduced in addition, by reserving an additional 10 per cent seats for the EWS category, that will definitely go against the judgment in ‘Indra Sawhney’s case’ because the added seats will merge with the existing/available seats, which shall automatically increase the caste quotas.