Does the 10% general reservation violate the basic structure of the Constitution?

Three Writ petitions in have been filed in the Supreme Court against the 10% economic reservation introduced by Union Government by way of Constitutional (103rd Amendment) Act 2019.

The petitions challenge the validity of the Constitutional (103rd Amendment) Act 2019 on the ground that it violates the basic structure of the Constitution in exceeding the 50% ceiling on reservation as imposed in the 1993 Indira Sawhney case. The Indira Sawhney case stated that the total reserved quota should not exceed 50% except in some extraordinary situations. This rule should be applied every year.

The Supreme Court had earlier declined to stay the 10% general quota.

So far 27 percent quota is allotted to the OBCs and another 22 per cent to the SC/STs on account of their social and educational backwardness, with this additional quota of 10% on grounds of economic backwardness, the total reservation shoots up to approximately 60 percent. Earlier, a nine-judge bench decided that the reservation under the Constitution scheme is prescribed only on the basis of social and educational backwardness and not for the Economically-weaker sections (EWS)

The EWS quota in public employment is as per the newly inserted Article 16(6) in the Constitution of India by the Constitution(103rd) Amendment Act. The amendment also inserted Article 15(6) to provide for EWS reservation in higher education, including private aided and unaided institutions, except those run by minorities. It further states that the upper limit of reservation will be ten percent, which will be in addition to the existing reservations.

Political activist Tehseen Poonawalla has filed a petition in the Supreme Court, challenging Constitution(103rd) Amendment Act, which inserted Articles 15(6) and 16(6) in the Constitution to provide for reservation to economically weaker sections in higher education and public employment up to a limit of 10%.

“Economically weaker sections” for the purposes of Articles 15 and 16 mean such sections as notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. This will be a class distinct from the already specified classes of SCs, STs and socially and educationally backward classes.

The amendment bill was passed by the Lok Sabha on January 8, on the day of its introduction in the house and cleared by the Rajya Sabha the next day. The amendment received Presidential assent on January 12 and was notified by the Centre on January 14.

Beginning next month(February 1), all Central government posts will be filled after factoring in the recently approved 10% reservation for economically weaker sections (EWS), according to an official order.

The Ministry of Personnel said in the order that detailed instructions on the procedure for the implementation of the EWS quota would be issued separately.

“It is hereby notified that 10% reservation would be provided for economically weaker sections in central government posts and services and would be effective in respect of all direct recruitment vacancies to be notified on or after February 1, 2019,” it said.

“Persons who are not covered under the existing scheme of reservation for Scheduled Castes, Scheduled Tribes and socially and educationally backward classes and whose family has gross annual income below ₹8 lakh are to be identified as EWSs for the benefit of reservation,” according to an order by Ministry of Social Justice and Empowerment.

Also, persons whose family owns or possesses five acres of agricultural land and above, residential flat of 1,000 sq. ft and above; residential plot of 100 sq. yards and above in notified municipalities and residential plot of 200 sq. yards and above in areas other than the notified municipalities “shall be excluded from being identified as EWSs, irrespective of the family income”, it said.

The income and assets of the families would be required to be certified by an officer not below the rank of Tahsildar in States/Union territories, after carefully verifying all relevant documents following due process as prescribed by the respective State/UT, the order said.

Instructions regarding reservation in admission to educational institutions would be issued by the HRD Ministry, it said.


Compiled by: Bhavini Mishra

Sources: Live Law, The Quint, GoNews, The Hindu.