india

Updated: Jan 08, 2019 08:07 IST

The government’s move to carve out 10% reservation for economically weaker sections (EWS) is beset with legal complications and will likely be tested in the Supreme Court before it can become a reality, believe legal experts.

So far, reservation under the Constitution is only given on the basis of social and educational backwardness, not economic backwardness. The leading case on the issue is a nine-judge bench judgment of the Supreme Court in 1993, called the Indira Sawhney and others vs Union of India case.

The Sawhney judgment caps reservation at 50%, saying, ” Reservation being extreme form of protective measure or affirmative action it should be confined to minority of seats. Even though the Constitution does not lay down any specific bar but the constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50%”.

The judgment also shuns the idea of reservation on the basis of economic criteria.

Constitutional expert and senior advocate Dr Rajeev Dhawan dismissed the government proposal as a ‘gimmick’ saying , “This move of the government does not correspond to any thing legal. It’s a gimmick because this amendment will first have to meet the parliamentary challenge, where the government will have to get the amendment passed by 2/3rd of the MPs present and voting. And the government doesn’t have these numbers. After this it will have to pass the legal hurdle and that of the Indira Sawhney judgment which has categorically rejected economic criteria for giving reservations.”

Senior advocate Sanjay Hegde said the government proposal would not be able to stand judicial scrutiny. “The SC has already held 50% as the limit to reservation. You can’t amend the constitution beyond the basic structure and equality is part of the basic structure. Creating a fresh reservation in open field, you are violating these limitation on exercise of constitutional power”, said Hegde.

“In the past, reservation has been approved only when given for social and educational backwardness and none of them included economic criteria,” said senior advocate Jaideep Gupta.

In the past, the SC and several high courts have used the 1993 judgments to strike down reservations that breached the 50% limit, such as in the Maratha and Patidar quota cases.