Act amended Articles 15 and 16 by adding clauses, empowering the government to provide reservation on the basis of economic backwardness.

The Supreme Court on Monday decided to consider the question whether the challenge to the 10% economic reservation law should be heard by a Constitution Bench.

A three-judge Bench led by Chief Justice of India Ranjan Gogoi scheduled a hearing on the question of reference to the larger Bench on March 28.

The court refused to pass any interim order to stay or hamper the implementation of the Constitution (103rd Amendment) Act, which provides 10% reservation in government jobs and educational institutions for those economically backward in the unreserved category.

The issue of reference to a Constitution Bench arose when senior advocate Rajeev Dhavan pointed out that 50% quota limit was part of the Basic Structure of the Constitution and the new amendment tinkered with it.

The Act amended Articles 15 and 16 by adding clauses, empowering the government to provide reservation on the basis of economic backwardness.

Act violated Basic Structure of Constitution: pleas

The petitions in the Supreme Court, mainly the one filed by activist Tehseen Poonawala, said the Act violated the Basic Structure of the Constitution. They argued that the 50% ceiling limit on quota was “engrafted as a part of the Basic Structure of the Constitution’s equality code” by the Supreme Court.

One of the petitions, filed by Youth For Equality, represented by advocate Senthil Jagadeesan and settled by advocate Gopal Sankaranarayanan, contended that the Supreme Court, in a nine-judge Bench judgment in Indira Sawhney, had settled the law that economic backwardness could not be the sole basis for reservation.

The plea argued that the Act was “vulnerable” and negated a binding judgment of the top court.

The petitioners contended that the amendments excluded the OBCs and the SC/ST communities from the scope of the economic reservation. This, it said, “essentially implies that only those who are poor from the general categories would avail the benefits of the quotas”.

It said the high creamy layer limit of ₹8 lakh per annum ensured that the elite captured the reservation benefits.

Further, the petitioners said the Supreme Court had settled the law that the “State’s reservation policy cannot be imposed on unaided educational institutions, and as they are not receiving any aid from the State, they can have their own admissions provided they are fair, transparent, non-exploitative and based on merit”.

A petition said, “While the impugned amendment attempts to overcome the applicability of Articles 19(1)(g) and 29(2), it remains completely silent on Article 14, which right protects the citizens from manifestly arbitrary State action.”

It also contended that the term “economically weaker sections” remained undefined in the Act along with the “ambiguous” term of “State.

2006 judgment modified in September 2018

A Constitution Bench, back in September 2018, modified a 2006 judgment requiring the State to show quantifiable data to prove the “backwardness” of a Scheduled Caste/Scheduled Tribe community in order to provide quota in promotion in public employment.

The court also had to consider the issue in the light of another judgment pronounced in the Jarnail Singh case in September last, which gave a huge fillip to the government’s efforts to provide “accelerated promotion with consequential seniority” for the Scheduled Caste/ Scheduled Tribe (SC/ST) members in government services.

“The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis,” the court held in the Jarnail Singh verdict.

The question of reference has come even as the Centre has sought more time to file its counter.