Experts flag concerns over Centre's 'politics' with reservation issue

Legal experts Tuesday termed the bill introduced in the Lok Sabha to extend reservation to economically backward sections in the general category, as "unconstitutional" and a "political weapon" which is likely to be "challenged in the court of law". The bill seeks to amend the Constitution to provide 10 per cent reservation in jobs and educational institutions to economically backward sections in the general category. Senior advocates Rakesh Dwivedi, Rajeev Dhavan and Ajit Sinha raised apprehensions on the Constitution (124th Amendment) Bill 2019, approved by the Union Cabinet on Monday, over its passing the test of law.

While Dwivedi said the move was an election gimmick, Dhavan expressed his strong opposition by terming the bill as "unconstitutional". The bill will require an amendment in Article 15, Sinha said, adding that the Indira Sawhney judgement will also act as legal hurdle indecision of the government. Dwivedi said the real issue is how far these reservations are going to help solve the problem of employment. "It is election time, hence governments are taking measures. As long as it benefits the people it is all right. The real issue will be how far these reservations are going to help solve the problem of employment," Dwivedi said.

He also said that though the Indira Sawhney judgement of the Supreme Court had fixed an overall reservation limit of 50 per cent, it should not be treated as a "hard and fast rule" that under no circumstances can be exceeded. "With regard to some far-flung areas, they have already said that if special reasons exist you can exceed. The courts will have to examine whether this 10 per cent extension can be allowed or not and would it be reasonable to permit it," he said.

The nine-judge bench of the Supreme Court had, in the Indira Sawhney case in 1992, permitted reservation for the SCs and STs in promotion to continue for a period of five years from November 16, 1992. Dhavan however, expressed his strong opposition by calling the bill legally unconstitutional.

"Legally, the bill is unconstitutional on the following grounds. First, the Economically Weaker Sections (EWS) cannot be the basis for reservation after the Indira Sawhney judgement where six judges out of nine permitted reservation for the SCs and STs in promotion in jobs. The remaining three said there should be only economic criteria for reservation but then no other criteria like the SC/ST and OBC should be there," said Dhavan. Dhavan further said that the 10 per cent reservation will go beyond 50 per cent limit set up by the apex court which is "impermissible".

Senior advocate Ajit Sinha said the bill will require an amendment in Article 15, which says that the state shall not discriminate on grounds of religion, race, caste, sex or place of birth, and added that the Indira Sawhney judgement will also act as a legal hurdle. "It has a legal hurdle also as there is the judgment of Indira Sawhney's case. Reservation above the 50 per cent limit will be constitutionally sustainable or not is a question. As regard to Article 14 (right to equality) it is okay if the economic condition is one of the grounds for reservation," Sinha said.

He further said the criteria laid down for economic backwardness is applicable "irrespective of all caste, creed, religion so it won't be a problem with regard to the amendment. And if it goes beyond the 50 per cent reservation, certainly it will be a test to be challenged in the court of law". He further added that the creamy layer has to be removed and then economic criteria can be a ground for reservation but to what extent and whether it can go beyond 50 per cent is the issue. Dhavan said that if the Bill is passed it will have to face the courts but if it fails, it will become a "political weapon".

"If it fails, it becomes a political weapon. The Narendra Modi government will say all these people opposed a bill for weaker sections, for poor people. So it will become part of the campaign anyway even if the bill fails," he said. Dhavan added that the criteria for EWS are not there in the bill and is left to the states and hence the states can make the income limit very high or very low.

(With inputs from agencies.)