The recent bill providing an additional 10% quota for the ‘Economically Weaker Section’ (EWS) of the society is not something which can be categorised as a political innovation. The Narasimha Rao government had bought something of this kind in the early 1990s for providing reservation in government jobs to ‘Economically Backward Group’ of the society, but it never saw daylight. The nine-judge bench of the Supreme Court struck it down in Indira Sawhney v. Union of India, popularly known as Mandal Commission Case, which also directed to restrict the reservations within the confine of 50 per cent.

Interestingly, the Indira Sawhney judgment was not just another judicial pronouncement of the Apex Court but rather it was the manifestation of the illustrious judicial endeavour of over 50 years. The question as to who is backward or forward has messed up every legal head in this country for one reason or the other; the answer has been consistently inconsistent with passage of time.

In the early 1950s caste was a basis for determining backwardness, in early 1960s ‘means’ became the basis for determining backwardness (R. Chitraleka v. Union of India), by the 70s it was ‘means-cum-caste’ and by the 80s it was caste again (Mandal Commission). Such has been the journey of reservation in India with no scheduled end but a continuous walk.

Now with a new category of ‘EWS’ being evolved there seems no end to it in the near future. Truly speaking reservation for India has played the same role as Awasthama had played in the Mahabharata; they both never seem to die.

The judicial exercise which Supreme Court had to do in all these years has been to determine the commonality in between a class of people so that it can designate them as backward and this was not an easy task for the Court, right from Champakan Dorairajan v. State of Madras (1951) wherein the Supreme Court had held that ‘caste’ cannot be the sole basis for determining backwardness till K.C.

Vasanth Kumar v. Union of India (1985) where five different opinions were given by five different judges for determining backwardness. Finding the common basis for saying that these groups of people are backward was the stiffest judicial exercise ever.

In this mix the Modi Government has added another element of ‘EWS’, however, the resolution passed by both the houses also consists of the criteria that the family income shall be less than Rs 8 lakh per annum for one to qualify for the benefits of the reservation.

The Rs 8 lakh per annum criteria for determining whether one is eligible for reservation or not does not seem to be a viable in the present day and age. Particularly, with such variances in standards of living across India, it is hard if not impossible to come to a determinative factor that a particular family is backward or not. For example the cost of living in Cuttack is much cheaper as compared to the cost of living in Mumbai.

Interestingly, Parliament and the Supreme Court of India have adopted, ever since the inception of the Constitution, a ‘class-based’ reservation system. However, this approach of economic criteria calls for an ‘individualbased’ reservation system under which every individual case has to be studied in order to determine whether one is eligible for getting benefits of reservation or not. After having gone through every individual case will be the State in a position to say that a particular group of people will form a class of people under ‘EWS.’

The Statement of Object and Reason of the 124th Constitutional Amendment Bill 2019 clearly states that the Bill wants to give representation to those members of society who so far have been excluded from attending higher educational institutions and public employment on account of their financial incapacity. But isn’t this going against the logic of the ‘State’? The State is the ultimate authority for creating jobs and higher educational institutions, by already granting reservation up to 49.5 per cent (15, 7.5 and 27 per cent respectively for SC/ST and OBC) the State has created a fictitious demand which it is trying to fill by giving more reservation.

So, in order to satisfy the demand of general/unreserved category (the leftover 40 per cent) it has to create more seats now or it has to lower the seats given to the SC/ST and OBC to adjust this 10 per cent in the 50 per cent. For if the State chose the first option it will go against the ratio of Indira Sawhney (decided by a 9-judge bench) and if so, this has all the makings of an institutional crisis or at least pulling the rug from beneath the Supreme Court.

Reservation of 10 per cent 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 per cent seats. It may not be acceptable to exclude 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 considered to serve the people, no such block can be created. Any such bar would be inconsistent with the guarantee of equal opportunity guaranteed by Clause (1) of Article 16. On this ground alone, the proposed Constitutional Amendment which seeks to amend Article 15 and 16 of the Constitution would fail judicial scrutiny.

The determination as to whether a particular group of people form a class or not is a sociological exercise.

Any judgment to this cannot be reached without a proper and thorough scientific research. The unreserved category itself is a class and it is not an option for the State to effect reservations on the grounds that a part of this section is economically weaker. It is a sociologically determinative factor, and in absence of any scientific and thorough research, any judgment as to policy making on reservation is suffering from heuristic fallings, which the 124th Constitutional Amendment Bill appears to be.

(The writers are, respectively, Registrar In-Charge and Assistant Professor at the National Law University Odisha, Cuttack.)