Policy Watch No.9

Can the Ten per cent Quota for Economically Weaker Sections Survive Judicial Scrutiny?

The Constitution (103rd Amendment) Act, 2019 has empowered the state to provide up to 10 per cent reservation in education and public employment for "economically weaker sections" (EWS) of citizens other than the Scheduled Castes (SC), the Scheduled Tribes (ST), and the non-creamy layer of the Other Backward Classes (OBC-NCL). This will be over and above the existing scheme of reservations and increases the total reservations to 59.50 per cent.

The fraught legal history of reservations in India shows that from 1951 onwards whenever the Supreme Court gave an adverse ruling on some aspect of reservations in education or public employment, the Parliament responded by amending the Constitution to reverse or overcome the inconvenient judicial pronouncements. The 103rd Amendment is the latest step in this direction aimed at overcoming the Supreme Court’s rulings that (1) economic backwardness cannot be sole criterion for reservation and (2) the total reservations should not be greater than 50 per cent.

Even a Constitutional amendment can be struck down by the Supreme Court if it has the effect of destroying or abrogating the "basic structure" of the Constitution. So, the only possible legal challenge to the validity of the 103 Amendment is a "basic structure challenge".

In this Policy Watch, K. Ashok Vardhan Shetty, retired Indian Administrative Service (IAS) officer, traces the constitutional and legislative history of reservations in India, discusses past ‘basic structure’ challenges relating to reservations, highlights the legal infirmities in the 103rd Amendment, looks at the different scenarios available before the Supreme Court, and analyses if a successful ‘basic structure’ challenge can be made out in this case. All these years, the “50 per cent ceiling” rule was the only thing that had stood in the way of the demands for greater reservation from various pressure groups. Once this Lakshman Rekha is crossed, there is no going back and we may be letting the genie of proportional representation out of the bottle.

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