Reservation move may not pass judicial scrutiny

The Narendra Modi government's decision to grant 10% reservation in jobs and education to candidates belonging to economically weaker sections of society may find it difficult to withstand the judicial scrutiny.

Though the government has decided to pass the Constitutional amendment, it is interesting to note that a similar attempt made earlier on September 25, 1991 was struck down by the Supreme Court.

The top court's nine-judge bench decision in the Indira Sawhney (Mandal) case in 1992 held that it was not "constitutionally permissible".

Dealing with a question if the reservation of 10% of the posts in favour of other economically backward sections of society was permissible under Article 16 of the Constitution, the nine-judge bench said, "We think not."

"Reservation of 10% of vacancies among open competition candidates on the basis of income/property holding basis means exclusion of those above the demarcating line from those 10% of seats... Any such bar would be inconsistent with the guarantee of equal opportunity held out by clause (1) of Article 16," the bench said.

Notably, the legal experts also pointed out that the concept of economic backwardness does not find mention in the Constitution to enable the government grant reservation in jobs and educational institutions. Reservation has to be provided to the socially and educationally backward classes and of them to predominantly socially backward classes.

Further, the move to reserve additionally 10% of seats could violate the ceiling of 50% affixed by the top court earlier.