India: Why 10% Reservation for Economically Weaker Sections won’t stand the test of Judiciary

Vote bank politics set aside, 124th constitution amendment bill for 10% reservations to economically backward weaker sections of the ‘general’ society will not stand the test of judiciary because –

1. In Indira Sawhney vs Union of India (1992), the Constitution Bench ‘specifically’ stated that economic criteria cannot be the sole basis for reservations under the Constitution. In Indra Sawhney, paragraph 799, the court held that a backward class cannot be determined only and exclusively with reference to economic criteria. It may be a consideration or the basis along with and in addition to social backwardness, but it can never be the sole criterion. Eight out of the nine judges on the bench concurred with this view. In paragraph 809 and 810, the bench held that reservation contemplated under clause (4) of Article 16 should not exceed 50%. It was a nine-judges bench ruling against an office Memorandum issued by the then P.V. Narasimha Rao government which reserved 10% of posts for ‘other economically backward sections…not covered by any of the existing schemes of reservations’. A 11+ judges bench needs to be conveyed to overcome this ruling.
2. In the same case, the court also held that the primary purpose of Article 16 of the constitution is to ensure participatory justice and not redistribution.
3. Economic Reservations, if made, cannot be limited to General Category. Exclusion of OBCs, SCs and STs from the scope of economic reservations hits Article 14 – ‘state shall not deny equality before law’.
4. In M. Nagaraj vs. Union of India (2006), the Constitutional Bench had upheld the Constitutional validity of Article 16(4) with the cavet in para 104, where the Court ‘specifically’ stated that, ‘..be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate’ thereby making the 50% upper ceiling on reservations part of the ‘basic structure’.
5. The percentage of general category citizens with household income less then eight lakhs per annum and having government jobs or being part of educational institutions (as students) is already way past 10 percent. Reserving an arbitrary percentage of seats for those who already occupy ‘more’ seats beats common sense.

A nation is not run on theatricals.