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10% reservation for General Category: Govt seeks Constitution amendment

Government sources says the 10 per cent reservation would encompass all communities and classes that don't fit in the 50 per cent quota

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The Union Cabinet's approval of 10 per cent reservation for economically weaker sections of the population falling under the general category may appear to be a deft political masterstroke ahead of the 2019 general elections, but it'll need an amendment to the Constitution to break the 50 per cent ceiling for reservations as set by the Supreme Court in 1992.

Government sources said the 10 per cent reservation would encompass all communities and classes that don't fit in the 50 per cent quota. "It would include economically backward people cutting across religious lines," the sources said.

They also said the additional reservation won't impact existing quotas given to SCs, STs and OBCs. To ensure this, a bill seeking amendment to Articles 15 and 16 of the Constitution would be brought before Parliament on Tuesday.

Constitutional expert Rajiv Dhavan told DNA that unlike the GST Bill, which was a special amendment, the current legislation would seek a simple amendment.

"Under Article 368(2), Parliament can amend the Constitution by introducing a bill in either House of Parliament, which needs to be passed in each House by not less than two-thirds majority of the members present and voting," he said. But since this legislation, unlike the GST Bill, doesn't touch upon federal powers, it wouldn't need the approval of state assemblies.

"If the amendment touches upon federal powers under the Constitution, only then the proviso under Article 368(2) will be attracted. To the extent state's power is affected under the constitutional framework, the proviso requires the amendment to be ratified by the legislatures of not less than one-half of the states," he said.

The Bill has to be passed by both Houses separately, so that the reservation cap will increase from 50 to 60 per cent. The ceiling of 50 per cent is a limitation imposed by the Supreme Court following the Indira Sawhney case, wherein it said that the government cannot have reservations totalling more than 50 per cent in favour of backward classes in public employment, while interpreting Articles 15 and 16 of the Constitution. Unlike the reservation for SC/ST/OBCs, caste is not going to be a criterion for eligibility to reservation under this new provision. In fact, sources revealed that the government's move plans to delineate the economically weaker section (EWS) for avoiding confusion.

In 2016, the Gujarat government had come up with a similar proposal to provide for 10 per cent reservation in educational institutions and jobs for EWS people within the general category. The ordinance, which had fixed Rs 6 lakh as the yearly income ceiling for the EWS category, was interpreted as a tactical move to take the sting out of the Patel community's agitation for reservation benefits. The high court, however, quashed the ordinance, declaring it unconstitutional.

Similarly, in 2014, the Bombay High Court stayed the Maharashtra government's decision to provide reservation for Marathas, since among other reasons, it exceeded the 50 per cent cap. Attempts by Rajasthan and Odisha to extend reservation to new groups have also been struck down for the same reason.

In 1979, the Janata Party government had constituted the the Mandal Commission with the mandate to identify India's socially or educationally backward classes. Until then, reservation was meant only for scheduled castes and scheduled tribes. And although the report recommending reservations for OBCs was submitted in 1980, it was the VP Singh government in 1989 that approved and implemented the report, leading to a storm and a petition in the apex court. The court, while allowing for 27 per cent reservation for OBCs, however, put in a rider: Seats reserved for different communities cannot together exceed 50 per cent. Tamil Nadu, however, had already crossed that limit by offering 69 per cent reservations. The Tamil Nadu Assembly then passed a legislation in 1993 to keep its reservation limit intact.

The Karnataka government in May last year promised to raise the reservation cap to 70 per cent. Andhra Pradesh and Telangana are also seeking to raise the limits to 55 and 62 per cent respectively. The two Telugu states have already passed laws to try and get immunity from the apex court's order under the Ninth Schedule like Tamil Nadu. All eyes are now on the apex court, where Tamil Nadu's own reservation policy is facing scrutiny, that will determine the fate of the reservation policy announced by the Centre as well as other states, crossing the limit of 50 per cent.

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