Sawhney further said that the amendment was also in conflict with the Mandal judgement
Senior advocate Indra Sawhney, who was behind the landmark Mandal judgment to limiting reservations at 50 per cent in 1992, has said that the government’s move of 10 per cent reservation to economically weaker sections violates the basic structure of the Constitution. She said that the Constitution (124th Amendment) Bill violates Article 14 (equality before law) and Article 15 (prohibition of discrimination on the basis of religion, race, caste, sex or place of birth).
“These two provisions are part of the basic structure of the Constitution. The 10 per cent reservation is for general category. It excludes the Other Backward Classes and SC/STs from this reservation, which is on (an) economic basis… Hence, the amendment is discriminatory and is in conflict with Articles 14 and 15,” she said while speaking to The Sunday Express.
Sawhney further said that the amendment was also in conflict with the Mandal judgement which clearly stated that the economic criteria cannot be the sole basis for providing reservations. She also said that the government has not defined what is an economically weaker section in the bill. “They have left it to the states to decide. And each state will come up with their definition,” Sawhney said.
She also claimed that the decision to reserve 10 per cent for EWS is not backed by any data and “it is also in conflict with the 2006 Supreme Court judgment on reservation in promotions”.
Citing Nagaraj judgment, Sawhney said that “the apex court had clearly stated that the government had to provide reservations on the basis of some quantitative exercise”. However, no such exercise was undertaken before introducing the constitutional amendment Bill, she added.
Sawhney also informed that some people have already approached her to know whether she would challenge the newly-introduced reservation before the Supreme Court. “At present, I have not decided whether I will move the SC, I am thinking about it. Let me decide and then I will come forward,” she said.
Earlier, former CJI KG Balakrishnan said that the government would not face any major challenge in the Supreme Court. In an exclusive interview to the Financial Express Online, Balakrishnan said that people may challenge the move citing SC judgement of 50 per cent reservation limit and basic structure violation. However, the basic structure theory itself requires reconsideration, he said.
“The constitution is a dynamic document. It should change with the situation. It is not written on stones for generations to come. If possible, considering the situation of the people, employment opportunity, economic conditions, and social backwardness, it should change especially when we are administering a great country like India,” the former CJI said.