10% quota for General Category is valid and well-drafted law

  1. INTRODUCTION

Reservation is an affirmative action by the Government to provide seats to backward/weaker people in the matters of appointment in government posts and/or seats in educational institutions and similar other matters.

There is another concept called “creamy layer” whereby the persons who are no longer backward viz. who are economically well-off are not eligible for reservation.

This article makes an attempt to analyse introduction of 10% quota for general category introduced by Articles 15(6) and 16(6) in the Constitution of India, 1950 by the Constitution (103rd) Amendment Act, 2019 w.e.f. 14-1-2019 (the amendment Act was assented to by the President of India on 12-1-2019 and notified effective date is 14-1-2019).

An attempt is also made to allay doubts and analyse seriousness of legal-challenges made to it.

2. RESERVATION STATUS UPTO 13-1-2019

The reservation status upto 13-1-2019 (before coming into force of Constitution (103rd) Amendment Act, 2019) was as follows :

Category of personsWhether creamy layer excluded ?Reservation in promotion applies ?Article% of reservation
Physically handicapped, etc.16(1)Depends
Scheduled Castes/ Scheduled Tribes [SC/ST]NoYes15(5) & 16(4)/ (4A)/(4B)22% to 23%
Other backward classesYesNo15(5) & 16(4)27%
49% to 50%

 

3. RESERVATION FROM 14-1-2019

The reservation status from 14-1-2019 (after coming into force of Constitution (103rd) Amendment Act, 2019) is as follows:

Category of personsWhether creamy layer excluded ?Reservation in promotion applies ?Article% of reservation
Physically handicapped, etc.16(1)Depends
Scheduled Castes/ Scheduled Tribes [SC/ST]NoYes15(5) & 16(4)/ (4A)/(4B)22% to 23%
Other backward classes [OBC]YesNo15(5) & 16(4)27%
Economically Weaker Sections [EWS] i.e., Poor General Category (other than SC/ST/OBC) (i.e., includes persons from all religions)No need, as based on povertyNo15(6) & 16(6)10%
59% to 60%

4. CONSTITUTIONAL PROVISIONS, AS AMENDED

The provisions of articles 15 and 16, as amended, are as follows :

4.1 Article 15

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2)    No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a)    access to shops, public restaurants, hotels and places of public entertainment; or

(b)    the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3)    Nothing in this article shall prevent the State from making any special provision for women and children.

(4)    Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5)    Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

(6)    Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—

(a)   any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b)   any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.

Explanation.—For the purposes of this article and article 16, “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.

4.2 Article 16

Equality of opportunity in matters of public employment.

16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2)    No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3)    Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4)    Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.

(5)    Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

(6)    Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.

5. 10% QUOTA ANALYSED

A brief analysis of Articles 15(6) and 16(6) introduced by the Constitution (103rd) Amendment Act, 2019 is as follows:

IssuesAnalysis
1. Who are eligible for it ?EWS i.e., Economically Weaker Sections

Explanation to Article 15 defines “economically weaker sections” and therefore, EWS 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.

The expression “family income” is not defined and shall be such as may be defined from State to State.

2. Are all EWS covered ?Though definition of EWS includes all poor, but, EWS benefits under Articles 15(6)/16(6) shall exclude SC/ST/OBC persons who are eligible for reservation, etc. under Articles 15(4)/(5) and 16(4).

Thus, EWS = Poor General Category persons (including persons of all religions viz. Hindus, Muslims, Christians, Parsis, Jews, etc.)

3. Language used & DraftingArticle 15(6) for EWS = Articles 15(4) & 15(5) for SC/ST/OBC

Article 16(6) for EWS = Articles 16(4) for SC/ST/OBC

The wordings employed are identical to existing provisions, which are already tested legally and therefore, the law is cutely drafted.

4. What benefits may be extended to EWS ?The following benefits may be extended for EWS :

1. Reservation in Appointment to Government Posts [Article 16(6)]

2. Reservation in Education Institutions (including private ones) [Article 15(6)(b)]

3. Special advancement provisions like Scholarship, Grants/Aid, Assistance, etc. [Article 15(6)(a)]

5. Is the provision mandatory ?No. Granting reservation is optional and may be less than 10% but not above 10% : Articles 15(6) and 16(6) are enabling provisions; they do not mandate States to grant reservations; the amendment merely empowers them to do so. Therefore, if the Governments want, then, they may extend the reservation; and thus, the provision is optional State-wise. The limit of 10% is also maximum limit and States may choose a lesser limit.

6. LEGAL CHALLENGES

To the extent known, there are two petitions that have been filed challenging the Constitution (103rd) Amendment Act, 2019. One is filed by one “Youth for Equality” before Supreme Court and another by DMK Leader before Madras High Court.

Since they list down major legal hurdles against the 10% quota, the arguments raised by them are analysed and replied in subsequent paras of this paper.

7. Issue No. 1 : ECONOMIC CRITERIA CAN BE THE SOLE BASIS FOR RESERVATION

7.1 ARGUMENT

It is argued by some that Economic criteria cannot be the sole basis for reservation because in Indira Sawhney Vs. Union of India, 1992 Supp. 3 SCC 217, the 9-judge Bench specifically stated that the economic criteria cannot be the sole basis for reservations.

7.2 REPLY

This argument is faulty and based on incorrect reading of Indra Sawhney’s case—

(a)   Indra Sawhney’s case is on interpretation of Article 15(4)/(5) and 16(4). Hence, that judgment cannot be applied for interpreting basis of Articles 15(6) and 16(6).

(b)   Indra Sawhney’s case reads in para 799:

799. It follows from the discussion under Question No. 3 that a backward class cannot be determined only and exclusivelywith reference to economic criterion. It may be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion. This is the view uniformly taken by this Court and we respectfully agree with the same.

Thus, it is clear that para 799 deals with determination of “backward class” for purposes of Articles 15(4)/(5) and 16(4) and does not deal with reservation on economic basis.

(c) Indra Sawhney’s case reads in para 860 :

860. For the sake of ready reference, we also record our answers to questions as framed by the counsel for the parties and set out in para 681.Our answers question-wise are:

(1) Article 16(4) is not an exception to Article 16(1). It is an instance of classification inherent in Article 16(1). Article 16(4) is exhaustive of the subject of reservation in favour of backward classes, though it may not be exhaustive of the very concept of reservation. Reservations for other classes can be provided under clause (1) of Article 16.

**

(3) Even under Article 16(1), reservations cannot be made on the basis of economic criteria alone.

Thus, denial of economic reservations is based on general provisions of Article 16(1).

The Constitution (103rd) Amendment Act, 2019 makes separate provisions in Article 16(6) and 15(6) and therefore, Indra Sawhney’s case is no bar.

8. Issue No. 2 : ECONOMIC RESERVATION CAN BE LIMITED TO GENERAL CATEGORIES

8.1 ARGUMENT

It is argued that by way of the present amendments, the exclusion of the OBCs and the SCs/STs from the scope of the economic reservation essentially implies that only those who are poor from the general categories would avail the benefits of the quotas. This violates doctrine of equality.

8.2 REPLY

This argument is faulty, firstly, because the general principle of equality is provided in Article 14 and Articles 15 and 16 override that general principle of equality. Here, Articles 15(6) and 16(6) override general rule of equality and therefore, Article 14 cannot be used to destroy new Articles 15(6) and 16(6).

Secondly, reservation under Articles 15(6) and 16(6) does not exclude the OBCs and the SCs/STs; in fact, it extends reservation to a class hitherto unreserved. Hence, exclusion of OBCs and the SCs/STs is not to deny them the benefit, as benefit is already available to them under Articles 15(4) and 16(4); in fact, this exclusion is by necessary implication to extend the benefit to weaker sections in residual category.

Thirdly, the larger question is whether carving out 10% reservation for weaker persons in general category transgresses the rights of others. The answer is Yes. But, reply thereto is, every reservation transgresses the rights of unreserved. The grant of reservation to OBCs was for first time in 1990s had deprived other persons (including SC/STs) to opportunities in residual quota; but, OBC-reservation was upheld as it was not to deny benefit but to grant benefit to OBCs based on Article 15(4)/(5) and 16(4). Now, enabling provision in article 15(6) and 16(6) does not deny benefit to others, but, grants benefit to poor persons in residual category irrespective of caste/creed/religion.

Fourthly, exclusion of already reserved categories viz. SC/ST/OBCs is a valid classification to avoid extension of double benefits.

Fifthly, the need for this reservation arose out of demands raised in several states that ‘poverty is not caste-specific’. The Patel-agitation in Gujarat, Jat-agitation in Haryana, Maratha-agitation in Maharashtra, demands in Muslim/Christian/other religions where there are no castes, etc. give a strong background behind this move. This provision enables States to make specific provisions.

Sixthly, classification based on poverty is an intelligible differentia and therefore, since this classification is “now” provided in constitution itself, it is a valid provision.

9. ISSUE No. 3 : CEILING OF 50% IS FOR CASTE-BASED RESERVATION UNDER ARTICLE 16(4), NOT FOR ARTICLE 16(6)

9.1 ARGUMENT

It is argued that the 50% ceiling limit cannot be breached and therefore, 10% reservation (in addition to pre-existing 50% quota) under article 15(6) and 16(6) is bad.

9.2 Part V & Paras 809, 812 and 860(4) of Indra Sawhney’s case (relevant extracts)

PART V

(Question nos. 6, 7 and 8)

Question 6:

To what extent can the reservation be made?

(a) Whether the 50% rule enunciated in Balaji a binding rule or only a rule of caution or rule of prudence?

(b) Whether the 50% rule, if any, is confined to reservations made under clause (4) of Article 16 or whether it takes in all types of reservations that can be provided under Article 16?

**

809. From the above discussion, the irresistible conclusion that follows is that the reservations contemplated in clause (4) of Article 16 should not exceed 50%.

812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as ‘vertical reservations’ and ‘horizontal reservations’. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations — what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains — and should remain — the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.

860. For the sake of ready reference, we also record our answers to questions as framed by the counsel for the parties and set out in para 681. Our answers question-wise are:

***

 (4) The reservations contemplated in clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

***

9.3 Reply

The argument is faulty mainly because it is based on incorrect reading of Indra Sawhney’s case. The aforequoted paras 809, 8012 and 860 of Indra Sawhney’s case make it clear that limit of 50% is only for Article 16(4). Secondly, limit of 50% is also not rigid; the judgment itself provides for enhancement in this limit based on circumstances.

In view of this, the argument against 10% quota falls-flat.

10. ISSUE No. 4 : RESERVATIONS MAY BE PROVIDED IN UNAIDED INSTITUTIONS

10.1 ARGUMENT

It is argued that imposing reservations on unaided institutions is manifestly arbitrary.

10.2 Reply

The argument is faulty mainly because reservation in unaided institutions is already provided in erstwhile Article 15(5) and new Article 15(6)(b) is replica thereof.

A similar issue was raised before the Supreme Court in Ashoka Kumar Thakur Vs. Union of India (UOI) and Ors. [2008 (5) SCALE 1, (2008) 6 SCC 1] but challenge relating to private un-aided educational institutions was not examined because no such institution has laid any challenge.

In the context of Right to Education Act, 2009, a similar issue cropped up before Supreme Court in Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) 6 SCC 1 (SC) and by a 2 : 1 majority, the 25% reservation in unaided institution was upheld.

11. ISSUE No. 5 : WHY 10% QUOTA PROVIDED IN 1991 WAS SET ASIDE

An attempt was made in 1991 to provide similar quota under Article 16(1) and same was set aside in Indra Sawhney’s case citing absence of enabling power in Article 16(1). The relevant para 845 (along with question No. 11) of Indra Sawhney’s case is :

Question No. 11:

Whether the reservation of 10% of the posts in favour of ‘other economically backward sections of the people who are not covered by any of the existing schemes of the reservations’ made by the Office Memorandum dated September 25, 1991 permissible under Article 16?

845. This clause provides for a 10% reservation (in appointments/posts) in favour of economically backward sections among the open competition (non-reserved) category. Though the criteria is not yet evolved by the Government of India, it is obvious that the basis is either the income of a person and/or the extent of property held by him. The impugned Memorandum does not say whether this classification is made under clause (4) or clause (1) of Article 16. Evidently, this classification among a category outside clause (4) of Article 16 is not and cannot be related to clause (4) of Article 16. If at all, it is relatable to clause (1). Even so, we find it difficult to sustain. Reservation of 10% of the vacancies among open competition candidates on the basis of income/property-holding means exclusion of those above the demarcating line from those 10% seats. The question is whether this is constitutionally permissible? We think not. It may not be permissible to debar a citizen from being considered for appointment to an office under the State solely on the basis of his income or property-holding. Since the employment under the State is really conceived to serve the people (that it may also be a source of livelihood is secondary) no such bar can be created. Any such bar would be inconsistent with the guarantee of equal opportunity held out by clause (1) of Article 16. On this ground alone, the said clause in the Office Memorandum dated May 25, 1991 fails and is accordingly declared as such.

Thus, it is seen that in Indra Sawhney’s case in year 1991 10% quota for poor people was provided by mere “government order” and was therefore, traced to Article 16(1), which reads that “There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

In fact, Indra Sawhney’s case highlighted that in absence of specific provision in Constitution, no such quota can be provided. Now, in view of Articles 15(6) and 16(6) that lack of enabling provision highlighted in Indra Sawhney’s case is done away with.

Therefore, any government orders provided for 10% quota for poor in general category will find their traces in Articles 15(6) and 16(6) and would therefore, be valid.

12. CONCLUSION & GREY-AREAS

In view of the above, there are no serious legal challenges/impediments to 10% quota in view of enabling provision in Constitution (103rd Amendment) Act, 2019.

The following are the grey areas :

  1. Method of periodical review of this reservation along with review of other reservations needs to be established;
  2. If the Supreme Court upholds this provision, the Court will have to fix a limit. Presently, this limit is 10% fixed in the Constitution but, in future, attempts may be made to enhance this limit for political reasons. Hence, this needs to be addressed.
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