Ex-CJI, jurists feel 10% quota unconstitutional and will be ‘difficult’ to implement

“The amendments moved by the Modi government to enable 10% reservation in government jobs and education for economically weaker upper castes will face implementation problems,” asserts former chief justice of India KG Balakrishnan.

He believes that the Constitutional amendment moved by the Centre is not in consonance with the Article 15 and 16 of the Constitution. The essence of Article 15 is that the states shall not discriminate against any citizen on ground of any religion, race, caste, sex or place of birth. Similarly, the words used in Article 16 are equality of opportunity in matters of public employment.

By the new legislation, Article 15 of the Constitution is being amended to the effect that nothing in this or in Clause (2) of Article 29 of the Constitution will prevent the state from making 10% reservation for the economically weaker sections of this community. “The economically weaker sections have not been defined and would be determined later. Thus a new class has been created for the purpose of reservation,” points out Balakrishnan.

Article 15(4) is an exception to it. It states that nothing above will prevent the state from making a special provision for advancement of any socially and educationally backward class of citizens. “The problem arises in these words – socially and educationally backward class of citizens. Economically weaker sections of the community need not be socially and educationally backward,” elaborates Balakrishnan.

Article 16(4) states that the state can make any reservation for appointments in favour of any backward class of citizens not adequately represented in the services under the state. “Here also the reservation is for the “backward class of citizens not adequately represented in the services,” explains Balakrishnan.

“This amendment goes against Article 15 and 16 of the Constitution. Therefore there maybe a challenge to the effect that the amendment is against the ‘Basic Structure Theory’ propounded in the Kesavananda Bharti case (1973) 4 SCC 225,” says Balakrishnan.

There may also be an objection that the percentage of reservation now would exceed 50%. “In the Indra Sawhney vs Union of India (AIR 1993 SC 477) case, the nine-judge bench held that altogether the reservations should not exceed 50% limit. Of course, that was stated while discussing caste-based reservations,” maintained Balakrishnan.

“Quite apart from the Constitutional validity of the amendment which will be decided by the Supreme court when called upon to do so, this is a socially regressive measure with very harmful long term consequences for our country,” says G. Mohan Gopal, former vice chancellor of the National Law School of India University, Bangalore.

Reservation is a Constitutional instrument to give representation and their due share to unrepresented communities. “The amendment uses reservations to do the opposite — to increase the space effectively reserved for over-represented communities from 50% to 60% (given the practice of treating the “general category” as a “reserved category” for upper castes; actual representation of upper caste communities is believed to be higher),” points out Gopal.

“The impact of this amendment is clear — it will help maintain the over-representation of dominant communities and reduce opportunities for communities that have been historically deprived of their due share. It will impede and delay social change. The amendment is in line with the long standing and steadfast effort of casteist forces to sabotage reservations. Through this amendment they have succeeded in ensuring that due and fair representation of all social groups in education and employment will remain a distant dream,” points out Gopal.

By introducing economic reservations for the first time into Articles 15 and 16, the amendment also lays the stage for the future abolition of caste-based reservations through merging caste-based reservation and economic reservations — a long standing demand of upper caste forces.

This amendment will also have to pass the scrutiny of whether there are persons from the backward classes who are not adequately represented, if not, then why not them and why the upper castes, argues Balakrishnan.

“The enactment crosses a ‘Lakshman Rekha’. It converts the Constitution from a charter for social revolution, as the Supreme Court once described it, to a weapon of counter-revolution. It changes the essential character of the Constitution of being an instrument of democratisation of society and social justice to becoming a weapon for preservation of concentration of power in the hands of a caste oligarchy,” maintains Gopal.

There can be no two views about the urgency of ending poverty, including of the relatively small proportion of poor who are upper castes. Gopal stresses that it is clear that this amendment is not really meant for poverty alleviation of the upper caste poor. “If it was, it should have been narrowly targeted to them, using established definitions of poverty including those used by the current Union Government,” highlights Gopal. In any case, reservation is not an anti-poverty instrument. It is a tool to democratise the social character of the State and the social composition of class rooms and faculty and ensure due representation of all social groups. “Poverty alleviation should not be mixed up with Article 15 and Article 16 of the Constitution which are curative measures for social prejudice, discrimination and exclusion. Introducing caste identity without any rationality or policy basis into anti-poverty programmes politicizes anti-poverty strategies and polarises society,” elucidates Gopal.

When the government says upper caste people earning upto ₹8 lakh annually will be given reservation in jobs and education, it means that those earning at least ₹65,000 a month will be eligible for this. “This means that 80-85% of people in this country will be eligible for this reservation. For it to have been beneficial and workable, they should have capped it at ₹5lakh. Now, it is certain someone will challenge it,” signs off Balakrishnan.