Constitutional Validity of 10% reservation for economically

backward upper caste citizens

The term ‘reservation’ is not defined anywhere in the Constitution of India. However
meaning or its definition is understood by
various scholars, Historian, Philosopher
and politician with looking into the need of
the time, like current notion of
understanding reservation that reservation
is provided to underprivileged or
marginalised section against discrimination
on the basis of caste, creed, sex etc. but
after the enactment of Indian Constitution,
all such type of discrimination were made
illegal or were made failing which will be
treated as violation of the Constitution.
Coming to the recent debatable reservation
scenario, like how Government looking ahead for providing reservation to economical
weaker section of the society. The Central Government of India has introduced 124th
Constitution Amendment Bill in the Parliament to provide reservation for Economically
Weaker Sections (EWS) among the general category candidates. The move is to provide 10%
reservation in higher education and government employment.

Constitution 124th Amendment Bill, 2019 provides ten per cent reservation to the
economically weaker sections (EWS) in the General category. The bill facilitates reservation
for EWS in direct recruitments in jobs and admission in higher educational institutions.

The reservation of EWS of general category will be given without tampering the existing
quotas for SC, ST and OBCs people.The bill is expected to benefit a huge section of upper
castes including Brahmins, Rajputs (Thakurs), Jats, Marathas, Bhumihars, and several trading
castes including Kapus and Kammas. The ―Economically Weaker Sections Quota bill‖ will
amend Article 15 and Article 16 of the Indian Constitution.

In article 15 of the Constitution, after clause (5), the following clause shall be inserted,
namely:—
‗(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article
29 shall prevent the State from making,— any special provision for the advancement of any
economically weaker sections of citizens other than the classes mentioned in clauses (4) and
(5) in so far as such special provisions relate to their admission to educational institutions
including private educational institutions, whether aided or unaided by the State, other than
the minority educational institutions referred to in clause (1) of article 30,
which in the case of reservation would be in addition to the existing reservations and subject
to a maximum of ten per cent of the total seats in each category.

Amendment to Article 16 (Reservation in Jobs)

In article 16 of the Constitution, after clause (5), the following clause shall be inserted,
namely:— ―(6) Nothing in this article shall prevent the State from making any provision for
the reservation of appointments or posts in favour of any economically weaker sections of
citizens other than the classes mentioned in clause (4), in addition to the existing reservation
and subject to a maximum of ten per cent of the posts in each category.‖.

Who comes under the “Economically Weaker Sections”?

For the purposes of article 15 and article 16, ―economically weaker sections‖ shall be such
as may be notified by the State from time to time on the basis of family income and other
indicators of economic disadvantage.‘.

Union Law and Justice Minister Ravi Shankar Prasad said the states will have freedom to
decide on income criterion of beneficiaries under the bill.This will be a class distinct from the
already specified classes of SCs, STs and socially and educationally backward classes
(OBCs).At present, reservations in India account for a total of 49.5%. If the 10% extra
reservation for EWS is also taken into account, it would be 59.5%. 7.5%, 15%, and 27%
quotas are reserved for Scheduled Tribes, Scheduled Castes, and Other Backward Classes
respectively.

If the EWS Quota Bill becomes an Act, only 40.5% of seats will be allocated in educational
institutions/jobs based on the merit of candidates. As pointed by Supreme Court, increase in
reservations can compromise the merit.Remember, the merit quota is not reserved anyone –
not even for the general category (hence the name – merit). It is open to candidates from all
categories – including SC, ST, OBC, and the General category – who qualify on merit (and
1
not because of reservation) .

EWS Quota bill in Lok Sabha

The bill needed a special majority to pass. With the support of the ruling party and opposition
parties, Lok Sabha has passed the Constitution 124th Amendment Bill, on 08-01-2019, the
same day it was introduced in the House.

323 members voted in favour of the bill, while three voted against it. AIADMK staged a
walkout before the voting.

1
Vikas Patak, The new 10% quota, its implication and more, the Hindu, 8 Jan 2019.
EWS Quota bill in Rajya Sabha
The Rajya Sabha too passed the Constitution (124th Amendment) Bill, 2019 on the same day
it was introduced (09-01-2019). Being a constitution amendment bill, it had to be passed with
a two-thirds majority in Rajya Sabha. During division on the bill in the Rajya Sabha, 165
members voted in favour of it while seven members voted against. The motion moved by
AIADMK, left parties and others to refer the bill to the Select Committee was negated.

The EWS Quota Bill Gets President’s assent, becomes Act

As both houses of the Parliament has passed the Constitution 124th (Amendment) Bill, 2019,
it was sent to the President of India for his assent. President Ram Nath Kovind gave his
assent to a bill on 12-01-2019. The legislation will now be known as the Constitution (103rd
Amendment) Act, 2019.The bill does not need the approval of State Assemblies.

A policy of economic reservation was present in the Manifesto of Indian National Congress
in the Indian general election as ―The Indian National Congress is committed to finding a
way forward for introducing reservation in education and employment for economically
weaker sections of all communities without in any way affecting existing reservations for
2
Scheduled Castes, Scheduled Tribes and Other Backward Classes”. It was a Congress
promise. However, INC didn‘t mention the details of their plan or percentage of the quota.
Despite not being on the BJP‘s election promise, the NDA government came forward with
the reservation for EWS, just before the 2019 election.

Should India need reservation?

It‘s the duty of the government to provide equality of status and opportunity in India.
Reservation is one of the tools against social oppression and injustice against certain classes.
Otherwise known as affirmative action, reservation helps in uplifting backward classes.

However, reservation is just one of the methods for social upliftment. There are many other
methods like providing scholarships, funds, coachings, and other welfare schemes. The way
reservation is implemented and executed in India is largely governed by vote-bank
politics.Indian Consitution allowed reservation only for socially and educationally
backward classes. However, in India, it became caste-based reservation instead of class-
based reservation.Initially, the reservation was intended only for SC/ST communities – that
too for a period of 10 years (1951-1961). However, it got extended ever since. After the
implementation of Mandal Commission report in 1990, the scope of the reservation was
widened to include Other Backward Communities (OBCs).

The benefits of the reservation were successively enjoyed only by a few communities (or
families), excluding the truly deserving ones. Even 70 years after independence, the demand

2
INC manifesto 2014.
for reservation has only increased. Now, with the introduction of economic criteria for
reservation, in addition to the caste-criteria which already existed, things have become more
complicated.

There is no doubt that unequals should not be treated equally. However, is the current system
of unequal treatment perfect? Is it creating more injustice? Is it the only way out in a welfare-
nation? It‘s time to introspect. Reservation based entirely on economic criteria is not an all-
in-one solution, though family income can be one of the parameters. Also, its time to fix a
time period for the reservation system – rather than extending it to eternity. Denying India,
the service of the meritorious candidates, who see them being overtaken by others with lesser
academic performance or brilliance, is also a crime and injustice. Aren‘t there any alternative
mechanisms to uplift the marginalised so that everyone gets equal opportunities? How is
affirmative action done in other countries? Reforms in the reservation system of India is the
need of the hour. However, as the subject of reservation revolves around a lot of votes,
parties are reluctant to disrupt the existing system. Reacting to the passage of the bill in Lok
Sabha, Prime Minister Narendra Modi said, it is a landmark moment in the nation‘s history
3
and an effective measure that ensures justice for all sections of society .

Finance minister Arun Jaitley, building the case for the 10 per cent quota, said, ―If two
individuals are not equal due to birth or for economic reasons, then they cannot be treated
equally. Unequals cannot be treated equally,‖ he said. He further contended that the 50% cap
on reservations imposed by the Supreme Court was only for caste-based reservations, and
the Economically Weaker Section (EWS) reservation won‘t be impacted by it.

Union Social Justice and Empowerment Minister Thaawarchand Gehlot said the similar state
laws for EWS quota were quashed by Courts because there was no provision for economic
reservation in the Constitution before. Now, the Law will not be struck down by the Supreme
Court if challenged as it has been brought by making required provisions in the Constitution.
The government may bring another bill to provide relaxations for EWS of General Category
in the government jobs with respect to the upper age limit, number of attempts, and cut-off
marks, similar to OBCs.

The Congress said it supported the bill, but doubted the government‘s intentions as it was
―gimmick‖ aimed at political gains in upcoming elections. Various parties, including the
BSP, SP, TDP and DMK, also called it the BJP‘s poll stunt but welcomed the move.

KV Thomas of the Congress said, his party is not against the concept of the bill and supports
it, but the way it has been brought, raises several questions on the sincerity of the
government. He alleged that the government has brought the bill without proper homework.
The Congress said it would prefer a parliamentary committee to look into the

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https://www.hindustantimes.com/india-news.
matter. Asaduddin Owaisi‘s AIMIM said they opposed the bill. So did Tamil Nadu‘s ruling
AIADMK, which walked out of the house ahead of the voting. AIADMK‘s Mr Thambi Durai
said, ―Have government schemes for the poor failed? There are enough schemes. This
reservation bill which you are bringing will be struck down by the Supreme Court‖.

Except in a few states like Tamil Nadu, the cap of reservation is 50%. This limit is set by the
Supreme Court to avoid the vote-bank politics of providing quotas thus compromising the
merit. Tamil Nadu has a law which provides for 69% reservations, which has been inserted
into the ninth schedule of Constitution to immunize it from judicial review.

The BJP has floated a poll gimmick to have a 10% quota for the economically weaker
sections (EWS) from among forward castes and faiths, close on the heels of Maratha OBC
reservation by Maharashtra. Four issues arise: (i) Can reservation be provided for EWS from
among forward classes? (ii) Can the Rs 8 lakh per family per annum income cut-off be right?
(iii) Can the threshold of 50% be increased to 60%?iv) Are EWS a homogenous group? Why
do we have reservation quotas at all? To redress discrimination, disadvantages from
backwardness and atrocities against targeted groups. The Constitution allowed reservation for
socially and educationally backward classes (SEBC) from 1951; and for backward classes
(BC) in public employment (Article 16) from 1950. BCs include Scheduled Castes (SCs),
Scheduled Tribes (STs) and OBCs. From 1995-2002 there were four constitutional
amendments. This is the fifth, apart from the first in 1951.In 1995 Parliament‘s sentiment was
―Aap Bill pass kar dijiye‖, of which another version was, ―Pass it. Pass it. Put it to vote.‖ Is
this the way to pass constitutional amendments.

In Indra Sawhney case (1992), a nine-judge bench majority ruled that economic criteria
cannot be exclusively used (six judges). Three dissenting judges wanted reservation only on
economic criteria and no other kind. They said: ―In a country... of 850 million people – 74%
of which is backward – job reservation can hardly be the source of reducing social and
economic disparities. Even the Mandal Report (called these) ... palliatives job reservations
4
(a)... vote-catching platter.‖ After the SC refused to recognise exclusive economic criterion,
many high courts reiterated this view. Haryana‘s 10% reservation for EBCs was stayed in
2016. In 2015, Rajasthan HC struck down 14% reservation for EBCs. In Gujarat, 10% EBC
reservation to meet the Patel demand for those earning less than Rs 6 lakh was struck down.
In 2017, Kerala notified 10% EBCs in Devaswom boards. In 1975, the SC had struck down
general reservation for rural areas in UP saying, ―Poverty in rural areas cannot be a ground
5
for reservation.‖ In 1980, it ruled that JK cannot use rectification of regional imbalances as a
ground for reservation. The Constitution uses the word ―class‖, a homogenous group sharing
socio-economic affinities. Quarter or half a country cannot be a class. Reservation for a non-
homogenous floating EBC is clearly unconstitutional. Further, the court treated the 50% cap

4
Indra Sawhney V. Union of India 2000 AIR (SC) 498
5
State of U.P V. Pradip Tandon & Ors. 1975 AIR 563
as part of the basic structure in 2006, to be only relaxed for unattended tribal areas. The
amendment would fail on all counts.The government‘s proposal is to provide 10% EWS
reservation for jobs and education if the family (assuming nuclear family) earns less than Rs
8 lakh a year (or those who own farmland less than five acres or a house less than 1,000 sq
feet). Are these disjunctive? The Bill doesn‘t deal with this. Arun Jaitley‘s budget speech said
tax returns of above Rs 5 lakh were filed by only 7.6 m people. Seventy per cent of farmers
6
own less than one hectare. A conservative estimate of 190 million earn less than 5 lakh . The
Gujarat Government had already brought an ordinance to provide 10% quota for EWS in the
forward castes. However, in August 2016, the Gujarat High Court had quashed this
7
ordinance. The appeal against that judgment is pending in the Supreme Court .

The criteria for claiming such benefits are also nebulous. For education, states will decide.
For Centre and state public employment the respective governments will. One can only recall
the Mandal stir over central job quotas. These new quotas will be in addition to minority
reservations. Given that this could cover 200-400 million for 10% of jobs and education,
castes have to compete against castes and religions against religions. Further
communalisation quotas are impermissible under a 1951 ruling. Will selection be merit-
based? In India those in areas of less education will have to compete with EWS in better
areas. With no subdivided quotas, will there be relaxation of standards to infringe efficiency

Constitution amendment requires two-thirds members of each House, with at least one half
voting, pass the Bill. Mathematical calculation will encourage non-attendance to lower the
two-thirds needed. The real catch is that if the amendment is defeated by the Opposition,
Modi‘s election campaign will assert they rejected a Bill for the poor; trying to make this
unconstitutionality politically win-win.

The downtrodden, especially those historically so, like the Scheduled Castes and Scheduled
Tribes, did deserve special consideration and should have been identified and provided with
state-defined extra income support. What might these have been? Income support
programmes from the very beginning and huge extra-aid for the schooling of the SC/ST kids
— such that SC and ST children would attain the average educational level of those with
―upper caste‖ backgrounds. This was not done. The liberal elite had other ideas, ones that
were drawn from their feudal desire to help ―the poor‖ and those who had been historically
8
discriminated against . Hence, governments conceived of every which way to help the elite,
and not the poor. When they did help the latter, they made sure that there were plenty of
opportunities for corruption. Instead of expanding primary healthcare and primary and
secondary schools for all, we allowed private schools to flourish and public schools to be
starved of expenditure and facilities and expansion. And to be staffed by teachers who did not
even come to class but had permanent employment and could not be fired (or released from

6
https://economictimes.indiatimes.com/news/politics-and-nation.
7
Newsline, Manupatra Power Your legal research.
8
Supra.
public duty). What did this result in? The elite went to private schools, paid large fees, and then
entered temples of wisdom created and expanded for their benefits — prestigious universities like
Delhi University, IITs and IIMs. All of this was welcomed and supported, and especially by the
SLs (secular liberals). Indeed, most of these SLs protested when bus fares were raised to ferry
them from their tony homes to the North Delhi campus. And when some misguided souls
advocated the raising of fees at DU, they protested, went on hartal, and complained about their
right to free education being violated. The lack of good primary and secondary education for the
non-elite meant that the dominantly poor (SCs, STs and Muslims) students did not get a good
education. But because of special reservation quotas, the SCs/STs expanded their education base
and were also able to get government jobs. In 1983, an average SC/ST youth had 2.4 years of
educational attainment and an average Muslim youth (5-24 years) had 3.3 years; in 2011/12, an
average SC/ST youth had 7.1 years of education, and a Muslim youth had the least educational
attainment in the country, 6.9 years. But the Muslims do come under the OBC (Otherwise
Backward Class, often confused with Otherwise Backward Caste) classification and so should be
eligible under the OBC classification. However, Muslim OBC youths had significantly lower
educational achievement (5.8 years) than non-Muslim OBCs (8.5 years) in 2011/12. Further, as
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the Sachar Committee report documented , Muslims in government jobs are about a third lower
than their population levels. What deserves emphasis is that the 10 per cent quota for the EWS of
the population (around 30 per cent of the total population) is the first reservation system for those
not currently covered by government support. This will be the first time that poor non-OBC non-
SC/ST individuals will get a chance. And given that Muslims are the poorest (economically
weakest), they should obtain preference in the EWS 10 per cent quota. The limit for eligibility for
this class has been fixed at Rs 8 lakh per family. This is quite high. Much has been made of the
fact that in income surveys conducted by the NCAER (IHDS survey), and wage surveys
conducted by the NSSO, Rs 8 lakh of household income makes 99 per cent of households
10
eligible. But these surveys are able to capture only 25-30 per cent of personal incomes . In
reality, the 8 lakh limit makes 20 per cent of households ineligible. But where did the Modi
government obtain the guidance for fixing this limit? From that fixed for OBCs by different
governments since 1993. In 1993, the OBC creamy layer was defined at Rs 1 lakh per family. In
2013 this limit was raised to 6 lakh (with intermittent increases as follows: 2004 – 2.5 lacs; 2008
4.5 lakh). Note that all these increases were instituted by the Congress — the total increase in the
limit, 700 per cent; increase in CPI during this period, 413 per cent. In 2017, the NDA
government increased the limit to Rs 8 lakh — an increase of 33 per cent, with a CPI increase
during the same period of 21 per cent. Given this correct expose of the pathway to the Rs 8 lakh
11
limit , and why, because some ―poor‖ Muslim, Sikh and Issai will now get the benefit that was
almost the exclusive preserve of Hindus before? As discussed above, Muslim OBCs are unlikely
to have benefitted much from the OBC quota. The Modi government needs to be congratulated
for two reasons. One, for allowing Muslims the benefits of misguided social policies — quotas
and reservations.

9
Prakash Mishra, Socio-Economic Status of Muslim, Tata Institute of Social Sciences,
10
Ibid.
11
https://www.cpim.org/sites/default/files/documents/booklet_no._1.
The second reason is embedded in the first — finally, the doors are open for a genuine
debate, a genuine reconsideration, of bad social welfare policies of the past 70 years. The
only explicit reservation policy contained in the Constitution is for seats in the legislature —
reserved constituencies for SCs and STs. Even this reservation was for 10 years — through
amendments, it has been renewed every 10 years, and the next amendment is due in 2020.
Otherwise, there is Article 15 (4): Nothing in this article or in clause (2) of Article 29 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. The special provision does not mean a quota; note also that socially and educationally
backwards is highly correlated with being backward (poorer) in incomes. Hence, this is the
first chance for poor Muslims, and poor Patels and poor Brahmins to get social benefits. After
they do so, let us think about revising the present bad system of quota governance.

The conceptual distinction between individual and group rights is a much debated topic in
liberal constitutional theory in Western democracies. It became a matter of contention in
recent decades in relation to affirmative action for racial minorities in the United States,
aboriginal rights in Canada, Australia and New Zealand, and multiculturalism in Europe.

In India, building upon the lifelong intellectual and political struggles of B.R. Ambedkar, a
fairly cohesive doctrine of collective rights of underprivileged minority groups that have been
victims of social discrimination is now well established within our liberal constitution.

In particular, judicial decisions have endorsed the idea that reservation in employment and
education, not exceeding half of the available positions, is justified for caste groups that
suffer from social disadvantage. This is an achievement of constitutional jurisprudence in
India.

The difficulty with the 124th amendment is that it effectively inserts the principle of
individual entitlement to reservation within a constitutional provision designed to provide
collective entitlement to groups. This is likely to produce much confusion, mischief and
social conflict.

Key here is the fact that the 50% limit on reservation imposed by the courts has now been
breached by an explicit provision of the constitution. There is every possibility now of
specific forward castes, such as Jats or Patidars, intensifying their claim to group reservation
on economic grounds. We could also have the demand that the quota for reservation of a
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particular caste group should be in proportion to its actual share in the population . This
would revive the demand for a new census of the socio -economic condition of all castes.

12
https://thewire.in/government/the-10-reservation-is-a-cynical-fraud-on-the-constitution.
Further, once the 50% limit is gone, the ground for reservation is no longer that of providing
social justice to a minority group which has been historically discriminated against (which
was Ambedkar‘s central argument) but a measure to alleviate the economic deprivation of a
majority of the population. If this argument gains currency and force, it could seriously
undermine the original principle of reservation as an instrument to alleviate the collective
social discrimination faced by certain caste groups. In fact, the principle of individual
entitlement could then be wielded to altogether dismantle caste reservation and institute a
13
universal rule of individual verification of economic status.

Perhaps this is the reason why those who have always stood against the very principle of
reservation and argued for the primacy of individual merit have not only not criticised the
latest move to expand the scope of reservations but, in some cases, have even welcomed it.

It is another matter, of course, that there are hardly any jobs in the government sector that
may be on offer for the new quotas. That is the reason why the government is pushing for an
additional quota in higher education, which is seen as a relatively costless populist project. It
14
is said that there will be an expansion of seats to accommodate the new quotas.

The resulting pressures on the education budget may well see the further curtailing of
scholarships and easy loans for disadvantaged students in order to pay for additional
infrastructure to accommodate the relatively privileged students from the forward castes.

By Anuj Singh Sirohi

BA.LLB(Hons.),

Himachal Pradesh National Law University, Shimla

Contact details- 8851436088,anujsinghsirohi99@gmail.com

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https://thewire.in/government/the-10-reservation-is-a-cynical-fraud-on-the-constitution.
14
Supra.
..