The Social Justice Ministry on December 13 said the 103rd Constitutional Amendment to introduce a 10% reservation for the Economically Weaker Sections (EWS) does not violate the 50% ceiling on reservation laid down by the Indra Sawhney judgment of 1992, arguing that the limit applied only to reservation for socially and educationally backward classes, the Scheduled Castes and the Scheduled Tribes.
The remarks came from Minister of State for Social Justice Pratima Bhoumik, who was responding to a question from Rajya Sabha MP Subhas Chandra Bose Pilli on whether the government was planning to increase the percentage of reservation for the Other Backward Classes from 27% in the light of the Supreme Court’s judgment upholding the 103rd Amendment.
Query on OBC quota
Mr. Pilli argued that the only reason for the OBC reservation to be pegged at 27% was the 50% ceiling on reservation put in place by the Supreme Court in its Indra Sawhney judgment. Since the EWS judgment of the top court had allowed a breach of this limit, was the government considering revising the percentage for OBC reservation, he asked.
In response, Ms. Bhoumik said, “Hon’ble Supreme Court in its judgment dated 16th November, 1992, in the Indra Sawhney case W.P.(C) No. 930 of 1990, has decided that reservation under Articles 15(4) and 16(4) of the Constitution should not exceed 50%... The reservation given to the Economically Weaker Sections (EWS) has been provided by the government under the provisions of Articles 15(6) and 16(6), which were inserted vide the Constitution 103rd Amendment Act, 2019. Thus the 10% reservation given to EWS does not violate the 50% limit on reservation given under Articles 15(4) and 16(4).”
Articles 15(4) and 16(4) prescribe reservation for the Scheduled Castes, Scheduled Tribes and socially and educationally backward classes in education and government jobs. Articles 15(6) and 16(6) were inserted through the 103rd Amendment creating the new classification of EWS.
As per the judgment of the Supreme Court in the EWS case, the majority opinion held that providing 10% reservation to the EWS was not a breach of the 50% limit prescribed by the Indra Sawhney judgment. On the one hand, the majority view held that the limit was not “inflexible” while adding that the 50% limit was specifically applicable only to reservations for the Scheduled Castes, Scheduled Tribes and backward classes.
On the other hand, the minority view of Justice S. Ravindra Bhat held that this was a breach and that allowing this would become “a gateway for further infractions and result in compartmentalisation”. He had also warned that this would seal the fate of several State legislations like that of Tamil Nadu (allowing a total of 69% quota to SC/ST and OBCs) that had already breached the limit and were pending in courts.
The Supreme Court’s EWS judgeent had led several legal experts and State government advocates to adopt the view that the limit in Indra Sawhney was allowed to be breached, giving these states the impetus to believe that they can breach the 50% limit.
In fact, within weeks of the judgment, the Jharkhand Assembly had passed legislation increasing reservation for SCs/STs and OBCs in State government posts to a total of 77%, citing that the Indra Sawhney judgement did not prevent them from doing this. Similarly, Madhya Pradesh, Chhattisgarh and Karnataka are hoping to breach the ceiling with their own legislations.
