It’s a familiar script. A government headed towards elections makes a bold proposal for extending reservation to a group that doesn’t yet have it, and then after the elections, the proposal falls by the wayside or gets struck down.
We’ve seen it in 1996 when the government sought to extend SC status to the Scheduled Caste converts to Christianity, and we’ve seen it in 2014 when the government notified Jats as OBC in 9 states.
What’s On the Govt’s Mind?
The Central Government seems to have taken a similar step with the Cabinet reportedly approving 10 percent reservation in government jobs, education for economically backward upper castes. This proposal is said to extend benefits to all those whose income is under 8 lakh rupees per annum and reportedly will be brought about by an amendment to Articles 15 and 16 of the Constitution.
As the Constitution currently stands, reservation on the basis of economic criteria alone is not provided for.
The Supreme Court has already stated this in no uncertain terms, including by a nine judge bench in Indira Sawhney v. Union of India. In fact the Supreme Court has laid down various tests including representation in services etc to determine social backwardness, and also denied OBC status to some communities such as Jats, on the basis of findings of the NCBC.
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It is no doubt with these strictures in mind that the government is proposing an amendment to the Constitution, well aware that members of forward castes can, by no stretch of imagination, be said to be a socially and educationally backward class, and hence, a new class of reserved category would have to be created.
Even if a Constitutional amendment is brought about, it would be subject to the basic structure test.
Equality, which includes not treating unequally-situated persons equally, is a part of this basic structure. The limit of 8 lakh rupees per annum is the same as the income limit in the creamy layer test for Other Backward Classes (OBC) meaning thereby, that the threshold for availing reservation as a member of the forward caste is the same as the threshold for a member of a socially and educationally backward class.
This treatment of unequally-situated persons on par is unlikely to stand constitutional scrutiny. The other hurdle the government would have to overcome is the 50 percent limit on reservation.
Some states have crossed this 50 percent barrier by including the legislation in the ninth schedule of the Constitution, which was supposed to protect it from judicial scrutiny. However, in 2007, the Supreme Court has held that even a legislation added to the ninth schedule can be challenged as violative of the basic structure as incorporated in Articles 14, 19, or 21 of the Constitution.
Attempt to Galvanize Upper-Caste Votes
A lot will hinge on how exactly the proposed amendments and the legislations are worded. For example, if the limit of Rs 8 lakhs is to apply in the same manner as the creamy layer criteria for OBCs, it will work out to be a fairly high limit, because income from salary is not to be included when calculating the family income for this purpose. It is only income from other sources of wealth, such as rental income, business profits, etc. which is considered while arriving at this limit.
This step by the government is no doubt to galvanize the upper-caste votes. It is also with a view to placate multiple communities which have of late been agitating, seeking inclusion in the OBC list.
What remains to be seen is whether people see it as yet another electoral gimmick which will not bear fruit.
(Vikram Hegde is a Supreme Court advocate. He tweets at @vikramhegde. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)