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EXCLUSIVE: No serious legal challenge to Modi’s 10% quota decision, says former CJI KG Balakrishnan

Saurabh Sharma

In a landmark move, both Houses of the Parliament passed the historic 124th constitutional amendment bill to provide 10 per cent reservation in jobs and educational institutions to the ‘economically weaker sections’ which will be notified by the government ‘from time to time on the basis of family income and other indicators of economic disadvantage . So far, 27 per cent quota is given to OBCs and 22 per cent to SC/STs for their social and educational backwardness. The new quota provision takes the total reservation to 60 per cent.

The biggest argument raised by all opposition parties, besides the timing of the government’s move, was that the Bill would not pass judicial scrutiny. The concern was based on two obervations by the apex court – that reservation shall not exceed 50 per cent, and that it cannot be offered on the basis of economic condition in the existing constitutional provisions.

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In an exclusive interview to FE Online, the former CJI K G Balakrishnan discusses whether the Opposition’s concerns were misplaced or did the Centre actually cross a line. Edited excerpts from the interaction:

Some opposition leaders claim that the government has crossed the 50 per cent reservation limit set by the Supreme Court and the bill will be set aside by the court. Is there any serious trouble ahead for the government?

Now, the problem is that this economically weaker section is not contemplated in the constitution so it may be argued that it is against the basic structure of the constitution. This is the only argument that one who wants to oppose will advance in the Supreme Court. There is also a likelihood of objections that in the Indra Sawhney case – the nine-judge bench had said the reservation shall not exceed 50 per cent. But that was for the existing reservation for social and backward class. Finance Minister Arun Jaitley has stated that it is only caste-based reservation that is restricted to 50 per cent. The new bill is for economically weaker sections, not for any specific caste. With the new amendment, a new class has been created under Article 15(5) economically weaker sections and amendments are presumed to be valid.

But how far can that basic structure argument go in the Supreme Court considering that it is for the economically weaker sections?

I don’t think the government will have any serious challenge. The constitution is a dynamic document. It should change with the situation. It is not written on stones for generations to come. If possible, considering the situation of the people, employment opportunity, economic conditions, and social backwardness, it should change especially when we are administering a great country like India. So the basic structure theory itself requires serious reconsideration.

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So you think even the basic structure of the constitution can be revisited if it is in the interest of the people?

Why should we always say that everything has been settled for years to come? If it is suitable, acceptable to the people and is for the welfare of the people, why don’t we adopt it even if it means tinkering with some provisions of the constitution. I’m not of the view that the basic structure is written on the stones and never to be questioned. We have to change but the change should be for the welfare of the people, wellness of the people and the betterment of the conditions of the country. By and large, people would accept it.

Who do you think will be the beneficiary of this new reservation?

We do not know yet the family income limit but suppose it is Rs 8 lakh, a large group of people will come in the bracket. It will be difficult to identify real beneficiaries. But Rs 8 lakh is also the limit for creamy layer in the OBC category. So, the government can not bring it down for the general category. When OBC under Rs 8 lakh income can get quota, why not upper castes? Whether it will really benefit the poor is a fact that needs to be verified later and is a question of implementation. The challenge before the government is how it will enforce this 10 per cent quota and who would be the beneficiaries.

The government in the bill has also included private educational institutions, whether aided or unaided by the state. But there are reports that PA Inamdar judgement had observed that the government cannot insist the private institutions provide quota. Do you think it will be problematic?

Even caste-based reservation is not implemented by the private educational institutions. But technically, there are no private institutions in India. All the private institutions get land at a concessional rate and do business with public money. Is there any big private educational institution that has not taken a loan from the banks? Whose money is it? Though it appears to us that these are private but strictly speaking they are not private institutions. Whether they can be told to apply reservation is subject to the wider interpretation of what is aided institution. But giving land at a concessional rate is an aid, giving loan is an aid. But I don’t think there would be any serious challenge to these provisions. Had it (the constitution) not been amended like this, there would have been problems. Without these amendments, it would have been difficult for the government to implement reservation for the economically weaker sections of the community.

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The government has not defined who the economically weaker sections but there are reports that a family with income less than Rs 8 lakh will qualify for this quota. What is your view on the minimum income structure?

I don’t think the move is bad. But if it had been fixed at Rs 2 lakh, I would have been extremely happy. Then it would have gone to people who really needed this. Rs 8 lakh is a wide range because a family which earns less than Rs 2 lakh, their children are not likely to get a better education. They go to government schools. They may not have good nourishing food, good house. So they are always lagging behind in society. So, anything given to them in the form of reservation would have been wonderful. That would have paved the way for inclusive growth. Rs 8 lakh will have a wide range and giving just 10 per cent will be a drop in the ocean. However, the government can not make it less than Rs 8 lakh because this is the same for the creamy layers under OBC and this parity has to be observed. But it is a wider net.

What is your take on caste-based quota? Should it stay or go or be revisited?

No. Some castes have suffered social inequality and were not even part of the social fabric. The purpose of the reservation is to bring them to the same level. The caste-based reservation should continue so long caste discrimination is there in the society. It is still prevalent in society. So there is nothing wrong in continuing caste-based reservation but one thing can be done is to remove creamy layers from the list. But some castes have cornered the major chunks of reservation benefits.

How do you see this move and is there any reason for others to oppose it?
It’s a positive move. I see no reason for people to oppose it. How can anybody oppose something which is for the economically weaker sections of the community?

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By breaching the 50 per cent ceiling, has the government not opened a Pandora’s box? What happens to the demands by Jats, Patels etc?

Those who are not classified under OBCs or SC/ST will have to be treated as upper castes. So naturally, they will come under new 10 per cent slab. Only thing they have to do is to fulfill Rs 8 lakh and other such criteria notified by the government. The government in its bill has not stated general class or upper castes, all it has said is “economically weaker sections” which is not caste-based and they will define later who falls in these sections. Jats and Patels who are not covered under caste-based reservations are also entitled to get this 10 per cent quota.

We cannot go on increasing the percentage of reservation. The problem is once a caste or a group is given a particular reservation, say 5 or 10 per cent, it is very difficult to take it away or reduce it. Once the benefit is extended, it will be difficult to take it back, they will have all sorts of objections. The reservation is given to these people because they are politically volatile, politically powerful and considerable vote banks. No politically party in a democratic set up would want to annoy a vote bank group by reducing or taking away these reservations. It would be difficult for the state or the Centre to withdraw reservations. So, that is why quota shall not be given merely on the basis of asking. I don’t think it has opened Pandora’s box because these Jats and Patels are under general class and now they have been given 10 per cent quota.

Are you saying that the 50 per cent caste-based reservation should not be extended further?

Basically, the principles of equality and opportunity should be observed. All these reservations whether 50 per cent for caste-based or 10 per cent for the economically weaker section are in violation of that basic principle. Equal opportunity is the basic thing that the state should follow. Reservations are exceptions and we can not go on extending it. It should not go beyond 50 per cent – then what is the meaning of the principle of equality? That is why you can not exceed beyond certain norms. It was okay to give reservation for a particular period to some who suffered historical injustice and that is why it was given in the constitution. But that cannot be extended to 100 per cent.

So, do you think this 10 per cent quota will end all the reservation demands?

These demands will never end. Demand is a political activity that will go on. They will say we are not satisfied or we are not getting the benefits. But I think, they would get the benefits as this is not a caste-based reservation and they fall under general category. Those who are not covered under caste-based (reservation) will naturally get the benefit here. They should settle with it.