Muddying the waters | The Financial Express

Muddying the waters

While 10% quota for economically weaker sections is welcome, reservation shouldn’t be allowed to exceed the 50% cap

Muddying the waters
The apex court was right in calling for a sunset stipulation for reservation. (IE)

A 3:2 majority judgment of a Supreme Court bench has held that the 103rd Amendment of the Constitution, which provides for 10% reservation in higher education and central government jobs to the Economically Weaker Sections (EWS) among the “general” category population, is not violative of the basic structure of the Constitution. Brought by the Centre in 2019, this was challenged on the ground that it provides reservation only on the basis of economic criteria, excludes the poor among the scheduled castes/scheduled tribes/other backward castes, and breaches the 50% cap on reservation set by the apex court in its Indira Sawhney judgment. Given how research has shown that educational attainment, which is necessary for upward mobility, has a strong link with economic background than caste, the apex court is on the right track. For a long time now, there has been resentment among many general category constituents who are deprived of better education and job opportunities as they do not get the “benefit” of reservation. While the petitioners had argued that reservation was a tool for representation to address discrimination and not deprivation through financial upliftment, the apex court endorsed the view that reservation is affirmative action, available to disenfranchised groups.

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The apex court was also right in calling for a sunset stipulation for reservation. Indeed, the Constitution itself, through Article 334, had envisioned a winding down of reservations accorded to the groups that had faced discrimination throughout history. After all, there is a defined sunset of 2030 for SC/ST reservations in legislatures. The entre and civil society activists need to build consensus on a similar end-date for SC/ST/OBC reservations under Articles 15 and 16 of the Constitution. Reservation is neither an end in itself, as Justice JB Pardiwala reminds in the majority judgment, nor should it be allowed to become a “vested interest” furthering divisions through competitive caste politics.

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However, the apex court’s verdict that the EWS quota doesn’t violate the basic structure of the Constitution on the 50% cap on reservations will muddy the waters for a long time to come. Indira Sawhney had set a “Lakshman rekha” for the quantum of reservation that could be given, with a provision for exception in “extraordinary circumstances”. But the states’ trigger-happy use of the exception provision has meant that Tamil Nadu, Andhra Pradesh, and Chhattisgarh, to name a few, have already breached the cap. Indeed, the Supreme Court, when it declared Maharashtra’s Maratha reservation law “unconstitutional”, had said that it didn’t find any substance “to revisit the Indira Sawhney judgment or referring it to a larger bench. The judgment has been upheld by at least four Constitution Benches”. So, the latest SC view has the potential to open the flood gates for a never-ending race on providing more reservations. If the government goes ahead and argues in favour of creating a category of reservations beyond the 50% cap, it will compromise merit as the opportunities for those left in the non-reserved general category will shrink further. The other point that needs to looked into is the setting of an annual family income of `8 lakh as a ceiling to determine if someone belongs to the EWS category. A government-appointed committee had submitted that this ceiling was reasonable, but it could not adequately explain how the income criterion was arrived at.

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First published on: 08-11-2022 at 04:30 IST