The Parliament building in Delhi. (Photographer: Dilip Banerjee/Bloomberg News)

10% Quota Bill Passes Parliament Test, Will It Pass Judicial Scrutiny? 

The Rajya Sabha on Wednesday passed the constitutional amendment bill that seeks reservation of up to 10 percent in government jobs and across educational institutions for economically backward citizens of India, a day after the Lok Sabha passed it almost unanimously.

The bill, however, may face a hurdle if it’s challenged in the Supreme Court, which has affixed the reservation limit at 50 percent. The bill raises this limit to 60 percent; previous attempts to raise it were overturned.

Will this bill pass judicial scrutiny? BloombergQuint discussed the issue with senior jurists Arvind Datar, Sanjay Hegde and Alok Prasanna Kumar.

Watch the full conversation here:

Edited excerpts:

Will the bill be challenged in court even if it passes muster in Rajya Sabha?

Sanjay Hegde: We will have to see the nature of the court challenge, but the first thing is this is a constitutional amendment bill, a constitutional amendment is rarely stayed. I think it is only the National Judicial Appointments Commission amendment which actually got stayed. The other part is a constitutional amendment can be challenged only on grounds of abridging or destroying the structure of the Constitution. The equality of opportunity, the equality under the law, certain aspects of it certainly come within the basic structure, the defence here for the government is that this is only an enabling provision, it only enables the government to provide reservation, while they have said over and above the existing reservations, it is still not clear as to the methodology which they will actually end up using. I would like to see the fine print in implementation before actually commenting on one way or the other decisively as to whether this constitutional amendment will be upheld or not.

The constitutional amendment maybe upheld but the method of implementation will be subject to other challenges.

Do you think that when it comes down to the details and the definition of “economically weaker sections”, do you think that is where it could get stuck?

Arvind Datar: I don’t think so. It will be very difficult to challenge the bill. In my opinion, the Bill is constitutionally valid, at least on the face of it. It creates a specific power. It gives power to the legislature to make provisions for the economically weaker sections. I don’t think it’s vague because the explanation to Article 15 says “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage. Like the Rs 8 lakh limit or not having a house or not having something. It’s open to 28 states to have their own parameters on what are “economically weaker sections”. Rs 8 lakh could be one benchmark, Rs 5 lakh could be another benchmark and so on. So like each state providing for the creamy layer, each state has to provide its own EWS definition. I don’t think its vague. It just enables the power.

This bill was going to come sooner or later because of the havoc the Mandal amendment created. So this was inevitable.

Also read: Why The 10% Quota Could Fail The Constitutional Test

For instituting economic weaker sections as a homogeneous group and then saying that they are eligible for reservation, how do you think that will go down because reservation, as we see today, is based on social parameters or the caste of a person or something which is hereditary. Can an economic parameter stand that test, because someone’s economic situation could change from time-to-time?

Sanjay Hegde: It could change. There are many factors there. If we have to go by past precedent, if we were to go the way Justice Jeevan Reddy approached the problem in Mandal, there it was not a constitutional amendment, it was an office memorandum, which provided for 10 percent for the economically weaker section. Justice Jeevan Reddy seemed to think that you could not exclude a man from public service just because he was rich, that is the exact logic in that paragraph. He said that quality of opportunity in public service is there for various reasons, you want all kinds of people in public service, you want everybody to have an equal bite at that cake and to say that “No no no you are a rich person, you have over Rs 8 lakh a year, you have a house, you have this, that and the other therefore I will not give you an equal swing, that may not be constitutionally right.” I don’t know if that logic will appeal to a later bench.

Ultimately, the constitutional amendment seems innocuous, but it still makes one huge change and the change is this. The court has all along said that open competition is the norm and equality of opportunity is the norm, reservations are an exception to the norm and that is why you cannot have reservations beyond 49 percent, the exception can’t eat up the rule, the rule has to prevail, the rule has to cover the majority in its application.

Now you have a situation where that majority application is eroded and open merit will cease to be the norm but it will in-turn become an exception. This kind of constitutional jugglery and whether this architecture destroys the basic structure of the Constitution or not is an argument which no doubt a constitutional bench will go into.

The bill as it exists today will pass muster. Do you agree with them?

Alok Prasanna Kumar: I beg to differ. I think what this bill represents is a fundamental attack on the notion of equality in the Constitution. Equality is not just by legal diction. There is an implicit assumption under the Constitution that the State will work towards creating equality. And equality is not just about saying we think everyone should be equal but putting it into practice. Reservations are a way of ensuring equality. You are giving the opportunity to those who have been denied opportunities for generations. What this measure does is to sever that link between reservations and what reservations actually do.

What this amendment does is to say that we will take this one factor that is your income or whether you live in a house and hand out a government job or education seat as charity. We will hand this out and not instead work towards the goal of social justice. If you see the Preamble of the Constitution, there is an explicit direction to the State that it has to work towards the goal of social justice.

This is a move which will destroy equality of opportunity by giving out charity. This is why I think this is a direct attack on the Constitution and I don’t think it will withstand judicial scrutiny.

Your response to the argument that Alok has put forward. Also, can we increase the amount of reservation from 50 percent to 60 percent as this Bill envisions?

Arvind Datar: I don’t agree with Alok. It’s not an attack on equality. One must see why was this Bill introduced. First of all, reservations theoretically were supposed to be for a limited purpose. It has not become entrenched. Now as far as the Mandal Committee is concerned, it is a seriously flawed report. Many castes who are not backward at all are included. Apart from that this 50 percent is theoretical. People who are in the reserved category, if they qualify on merit they come into the open category. So basically you have a situation where the reserved category was eating most of the availability and there was no opportunity for people in the general category. If you take the thing of the roster of promotions and so on and so forth, it has been known that in many many states, from 2004 onwards in state after state, almost all the important post in many government organisations have been occupied by reservationists. And the open category was not getting anything at all. So there was a huge amount of resentment. Even a person who is from the open category, who is economically poor, who is economically at a disadvantage, he has no chance of getting any opportunity in a government job or more importantly in a medical college or an engineering college.

I personally feel that this Bill became inevitable because the kind of havoc Mandal created.

In the post Mandal scenario, each state was trying to include different castes as backward and so on—that made this Bill inevitable. I think it’s fully justified. I think it’s constitutionally valid. How it could be challenged is how they define economically weaker sections. When I saw this Bill I knew it was coming for a long time. In fact if you see, various governments have been proposing this Bill. Gujarat had proposed it. Andhra had proposed it. So all of them knew at the ground level that general category people were not getting an adequate opportunity at all.

In fact, Mandal destroyed opportunity, destroyed equality and this is some kind of mitigation of the havoc that Mandal created.

With 10 percent reservation for general categories, are there enough opportunities or is it going to be a lollipop?

Sanjay Hegde: It is a lollipop for one very simple reason, the general category anyway had access to 51 percent. Now it is not that they are getting an extra 10 percent from somewhere or the 10 percent is being taken away from the reserved categories and given to the general category. It’s the same cake. Only a part of the cake is being sliced and kept apart from the poor among the general category. I don’t see how this undoes Mandal or anything else. Mandal is here to stay and also reservations for scheduled castes and scheduled tribes have now become institutionalised, ultimately we are going back to that famous formulation by Kashiram where ‘”iski jitni sankhya bhari, uski utni hissedari”. Therefore, government jobs become often representational, access to government seats also becomes representational.

This was the old formula—pre-independence also—in the Madras Presidency where you had what was called the communal reservation, where each community or each caste got seats allotted according to its numerical strength. Right now, this particular bill, I don’t see why so much of a salvation is being seen by some.

It’s the same cake which was anyway available to you which has been separately sliced for the poorer among you. What’s there to celebrate?

This sense of animosity among people who were kept out of reservation especially in education, is it that sense which is making people feel positively about it?

Alok Prasanna Kumar: Let me just say that a long time ago, I was one of the people who felt that resentment. Now, I know better.

A lot of this resentment is being blind to your own privilege, knowing that you have benefitted from other people being oppressed and not been given an opportunity.  

So to imagine that just because I have gotten certain marks that I’m automatically entitled to a college seat, ignoring privilege and levels of oppression, I think that’s just silly. I used to be like that. Now, I know better. A lot of discussion on merit is just to hide that there are structural reasons why someone is poor or why someone is deprived or why someone is not able to access resources. Let’s not forget that a government job is also a resource. If we say don’t even think of college or government jobs and there is high-level discrimination in the private sector, how many jobs remain? What opportunities are we giving to scheduled castes, scheduled tribes and Bahujans who have been excluded from society for so long? Data still shows that SCs, STs are still being turned away from government jobs. Especially in the matter of recruitment, where there is a viva or a face to face interaction, you see them being excluded as well. A lot of reserved posts are going unfilled especially in the subordinate judiciary. So, I don’t think it’s a bad thing that people have access to government resources. You can’t keep thinking of it as a charity. You cannot have a democratic polity without being a democratic society.

Do you want to respond to what Mr. Hegde and what Mr. Kumar have said?

Arvind Datar: Let’s keep the scheduled castes and scheduled tribes separately, because that’s a different category. That’s a different set of problems. I know for a fact that there are so many people in the general category to whom that 51 percent is just a mirage. 51 percent doesn’t work because all sorts of castes who are basically dominant castes or forward castes or economically well-off castes, they are also classified as OBC.

In Madras, from where I come, 69 percent is the reservation. So a very very small pie is open to the general category. Even that 30 percent of 50 percent is eaten up by the OBC category. So let’s face it, those who are rich in the open category - you know the astronomical number of people who had to leave India for higher education because there is no opportunity here. Now a poor student from a general category has nowhere to go. I know that the ground reality, children of stenographers, children of other staff in Madras... they just don’t get admission into college. And today private colleges are so expensive, they can’t afford it also. It is really a serious problem and that’s why this had to be addressed. Let’s not run away from the fact that this 51 percent is not correct. It’s much less to the open category. If you read Mr. Shourie’s book - “Falling Over Backwards”, you read the other articles in Political and Economic weekly, there is enough data to show that the OBC reservations don’t go to the deserving people and it has really completely destroyed the picture.

In principle, I don’t agree with reservation beyond a point. Any reservation is bad because it sacrifices merit. But this is in principle, one wrong done to mitigate a larger wrong.

I personally believe in any country where 70 percent of reservation in jobs and education is based not on merit is a serious flaw. But then we have to live with it. I don’t think that you can now complain that this 10 percent should not be given because what should these poor people do? Let’s work it out. You had Mandal for so many years. Let’s try out this 10 percent system. Let’s see how it works. Why condemn it before it starts?

We still don’t know whether it’s really Rs 8 lakh, that was put out by sources before the bill came to Parliament. There is no figure here. Rs 8 lakh seems like an enormous amount in a country like India where you would be tackling a huge majority of the General quota. Then, will it make any sense at the end of the day because you are still the same number of people fighting for the same shrinking pie?

Sanjay Hegde: It is a slice of the shrinking pie which has been earmarked for the people who are likely to have an income below Rs 8 lakh. The logic of Rs 8 lakh is because above Rs 8 lakh is the creamy layer among schedule castes, that is the government’s definition and you can’t have a different yardstick in the general category that is the logic from that section which is being applied here and therefore a mockery has been made both ways. The point of reservation in government jobs and government education is something else altogether, ultimately it is how we view our nation’s long walk towards equality. We are an iniquitous, highly hierarchical caste-based society and for millennia we have had certain jobs reserved only for certain communities and those who didn’t have the benefit of reservation ended up cleaning up the sewers. You have to rework that. I know it does work iniquity to those who are on the upper level of the pyramid but that is a small number compared to the huge numbers that have been unserviced. Yes, reservations in terms of entitlement have often become entrenched for the dominant among the scheduled castes, scheduled tribes and other backward classes, Mr. Datar is right there but there can be mechanisms put, the question is how much of formal equality can you have where everybody is treated alike, reduced to numbers who has got better marks gets through and how much has to be the dynamic equality of social engineering. This is a very fine balance, generations keep working at it. Politicians don’t actually work on it or don’t think long enough, they come up in fits and every politician thinks it is a masterstroke when he launches it. VP Singh was very convinced when he launched Mandal that he had more or less destroyed the BJP, we have seen what happened.

This government has let out another genie out of the bag and the real interesting one is that it also looks at 10 percent reservation in private sector education. Once you start touching the private sector in education, how far do you go before you get into the jobs in the private sector?

Finance Minister says that reservation in private sector education already exists for the 50 percent reserved class and it is only being extended. So in a sense, it is something that we have already seen.

Sanjay Hegde: You didn’t have it as a constitutional principle. You had it as a social levy which some states had worked out. They got into agreements with the capitation fee management and said give us so many seats for the government and in distributing seats for the government applied for reservation, it was a different thing altogether. Now by the constitution, if you say that you can get into the private sector and set aside for education, the next demand is going to be for the private sector jobs. I would really love to see that happen.

How much is 10 percent going to help, at the end of the day?

Arvind Datar: This was inevitable because there was a lot of seething anger amongst the general category that it had to be addressed. Whatever it may be, elections or something. I always felt that this was coming because Gujarat tried it, other people tried it. It got struck down because there was no constitutional provision. But as I said, let’s not condemn it without trying it out. When Mandal came, we just thought it was going to be 27 percent for the other backward classes at the time of recruitment. Mandal said that there would be no reservation in the promotion, if you couldn’t cross the 50 percent limit. But what has happened? Subsequently, the Constitution has been amended and you’ve made it to promotions, crossed the 50 percent barrier, carried the carry forward rule and so on. One interesting thing is that this 10 percent, will it only be at the time of recruitment or will it be considered for promotions also? Is it going to be part of the roster system? There are so many interesting dimensions which are going to pan out, which is too early to say. And as far as private education is concerned, another completely flawed act in the Right to Education Act. I know at the ground level it is creating so much of havoc, especially in non-minority schools. This also is going to create some problems but once you have the reservations you can’t avoid it for private education institutions.

And you agree that reservation in the private employment is the next step?

Arvind Datar: No, I don’t think it is going to happen. Reservation in the private sector will be a disaster. It will not happen because it is not possible to have reservations in the private sector and because it will have a lot of practical problems. Maharashtra tried this a year ago, it just didn’t work. What do you mean by the private sector? Are you going to take industries above Rs 1 crore, Rs 2 crore? Where do you get the reservation? You can’t have it in the private sector. It is just not possible.