Upper Caste Reservation Bill: Will it Stand Test of Judicial Scrutiny?

NEW DELHI: The Constitution (124th Amendment) Bill, 2019, aimed at giving 10% reservation in education and government jobs for people belonging to economically weaker sections of the general category, has been passed by both Houses of Parliament, despite the Opposition terming the proposed law a “pre-poll stunt” by the Narendra Modi government.

Even the harshest critics of the ruling Bharatiya Janata Party (BJP) within the Opposition did not find reasons to oppose the Bill – which will now get the President’s assent to finally amend the Constitution – though they did question the intention of the government and the timing of the proposed amendment. Clearly, with general elections around the corner, no political party wants to be seen as ‘anti-poor’.

However, the amendment to the Constitution, such as this one, is likely to face scrutiny in the Supreme Court. What will happen then?

A section of the people see a “deeper design” in the proposal to give 10% reservation to the economically backward classes. They argue that this is an attempt to “undo caste-based”. The high upper limit (Rs 8 lakh income per annum), they argue, to define poor upper castes is also part of this design. 

Former Prime Minister PV Narasimha Rao had also attempted reservation for the poor belonging to the upper castes, but that Bill could not stand judicial scrutiny. “Suspicion on intent is bound to be created as to why this second attempt. The end goal is to get the Supreme Court’s nod on economic criteria and then finally scrap all caste-based reservation,” say some critics.

Newsclick spoke to constitutional experts and legal luminaries to understand the constitutional validity of the 124th amendment and whether it would be able withstand judicial scrutiny.

Expecting smooth sailing of the Bill, SK Sharma, former secretary of the Lok Sabha and Delhi Legislative Assembly, said:  “As per the Constitution, so far, the State can come up with a special provision for educationally and socially backward people and it has been well defined in Article 15 and 16. The government is now trying to include economical backwardness as an additional condition for the quota by amending the Constitution. Had it introduced the quota Bill without amending the Constitution, it would have been struck down by the Supreme Court. But since, the government has introduced the Bill with a proposed amendment in the Constitution, the proposed legislation – if it becomes law – would stand judicial scrutiny, as the apex court is only supposed to interpret the Constitution as it exists.”

When reminded that the Congress government under Narasimha Rao did provide for similar reservation but a nine-judge bench in Indra Sawhney case struck it down in 1992, Sharma said “it is for the top court to decide”. But, he reiterated that the SC cannot draw a new line and can only interpret the Constitution.

Explaining the steps needed for the constitutional amendment, Faizan Mustafa,  Vice Chancellor of NALSAR University of Law, Hyderabad, said each House of the Parliament (Lok Sabha and Rajya Sabha) has to pass it with two-thirds majority of members voting and present and half of the membership of the House.

All this is laid out in Article 368, which also lays down conditions when the Constitutional amendment needs to be passed (by resolution) by majority of state Assemblies. These conditions apply when an amendment involves a federal structure or is of common interest to both the Union and the States, namely, the election of the President (Articles 54 and 55); the extent of the executive power of the Union and the States (Articles 73 and 162); the High Courts for Union territories (Article 241); The Union Judiciary and the High Courts in the States (Chapter IV of Part V and Chapter V of Part VI); the distribution of legislative powers between the Union and the States (Chapter I of Part XI and Seventh Schedule); the representation of States in Parliament; and the provision for amendment of the Constitution.

During the Lok Sabha debate on the amendment Bill, K.V Thomas of the Congress, had stated that the “Bill has to be passed by a two-third majority, and then, 50% of the states have to approve it”. But Finance Minister Arun Jaitley intervened and said, “…to amend Part 3 of Article 368 of the Constitution (which describes the Power of Parliament to amend the Constitution and procedure thereof), which concerns the fundamental rights, there is no need to go to state legislatures.” 

“This is not the matter which will go to the state assemblies for ratification. So, once it gets passed in the Rajya Sabha (it has already been passed in the Lok Sabha), it will become a law in accordance with the laid down procedure,” Mustafa told Newsclick.

How and Why Procedures of Passage of Constitutional Amendment Bills Vary

Ex-Lok Sabha Secretary-General PDT Achary said Parliament can amend the Constitution under Article 368(2) by passing a Bill in each House by a majority of the total membership of that House and by two-thirds of the members of that House present and voting.

“After winning confidence of both the Houses, theBbill is sent to the President for his assent. The Constitution thereupon stands amended. But if the proposed amendment seeks to change certain specific provisions such as Articles 54, 55 and 73; Chapter IV of Part V; Chapter V of Part VI; Chapter I of Part XI; or any of the lists in the Seventh Schedule; or the representation of states in Parliament; then the Bill is required to be ratified by the Legislatures of half of the states. Parliament cannot amend those provisions – which form the basic structure of the Constitution,” he clarified.      

The Most Likely Scenario of Govt’s Move

Asked how valid is the argument that the proposed quota law will not be able to stand judicial scrutiny, Mustafa said, “Though a constitutional amendment, you cannot change the basic structure of the Constitution. But there is no definition of the basic structure and in each case. The court decides what features of the Constitution constitutes the basic structure. Justice KK Mathew in 1975 had not accepted Article 14 as part of the basic structure because equality is a multi-coloured concept incapable of a single definition,” adding that “Moreover, the government may argue that reservation will widen the ideals of equality by including even the economically backward. But equality as a principle is part of the basic structure and with equality of status and opportunity in the preamble also as basic structure, the court may agree to the economic criterion for reservation.”

The most likely scenario, he said, is that the Modi government’s move will be stayed by the apex court till the final decision on the constitutionality of the Bill is delivered. The validity of reservation on the basis of economic backwardness in the absence of social backwardness, will depend on how many of the 11 yardsticks of backwardness laid down in the Indra Sawhney cse for OBC reservation is satisfied by the Bill.

“In any case, the legality of the government’s move is suspect. The apex court has said in categorical terms that reservation solely on the basis of economic backwardness, that is without evidence of historical discrimination, finds no justification in the Constitution. A nine-judge bench in the Indra Sawhney case had ruled that reservation is a remedy for historical discrimination and its continuing ill-effects. The court also said that reservation is not aimed at economic uplift or poverty alleviation. Economic backwardness is to be on account of social backwardness,” Mustafa added.

In an article published in The Indian Express , Mustafa had argued that the backwardness mentioned under Article 16(1) must be the backwardness that is both the cause and consequence of non-representation in the state administration. It has to be backwardness of the whole class, not of some individuals. The economic criterion will thus lead, in effect, to the virtual deletion of Article 16(4) from the Constitution. Hence, economic backwardness has to be on account of social backwardness under Article 16(4).

The weaker sections, as mentioned in Article 46, he argues in the article, are a genus of which the backward class of citizens mentioned in Article 16(4) constitute a species. Thus, only backward classes, and not all the weaker sections, are entitled to reservation. “Caste and class are not synonymous. Class is not antithetical to caste, caste is an enclosed class. Ambedkar, at the time of the first amendment, which inserted Clause 4 in Article 15, told Parliament that “backward classes are nothing else but a collection of castes”. Class here is social class. Thus, economic backwardness must be the result of social backwardness,” he said.

Senior Supreme Court lawyer Sanjay Hegde, however, sees the Bill as “innocuous” but argues that a constitutional amendment is “rarely stayed”.

“The first thing is this is constitutional amendment Bill, which is rarely stayed. It was only the NJAC (National Judicial Appointments Commission – a proposed body that would have been responsible for the appointment and transfer of judges to the higher judiciary but was struck down by the Supreme Court by 4:1 majority in October 2015) amendment that got declared unconstitutional. A constitutional amendment can only be challenged on grounds of bridging or destroying the basic structure of the Constitution. Equality of opportunity, equality under the law and certain aspects of it come within the basic structure,” he said, adding that “the defence here for the government is that it (the amendment) is only an enabling provision. It enables the government to provide reservations. While they (the government) have said over and above the existing reservations, it is still not clear the methodology which they will end up using. Therefore, the constitutional amendment may be upheld but the method of implementation would, of course, be subject to other challenges”.

“If we were to go by past precedence, the way Justice Jeevan Reddy approached the problem in Mandal Commission, it was not a constitutional amendment. It was an office memorandum that provided 10% reservation to economically weaker sections. Justice Jeevan Reddy seems to think that you cannot exclude a person from public service just because he was rich. That was the exact logic of his judgement. He said equality of opportunity in public service is there for various reasons. You want all kind of people in public service, you want everyone to have equal bite at that cake. It won’t be constitutionally right to exclude anyone on the basis of his or her economic well-being. I don’t know whether that logic will appeal to the bench,” he added.

Hegde said the constitutional amendment seems to be “innocuous but it still makes one huge change,” and added, “The court has all along said that that open competition is the norm and equality of opportunity is the norm. Reservations are exception to the norms. That is why you cannot have reservation beyond 49%. The exceptions cannot eat up the rules. The rules have to prevail and cover the majority in its application. Now, you have a situation where that majority application itself is being eroded and open merit will cease to be the norm but people in turn will become an exception. This kind of constitutional jugglery destroys the basic structure of the Constitution.”