Former Supreme Court judge Justice P B Sawant, who had concurred with the majority 1992 Mandal verdict on reservation, has said that the Bill passed by Parliament providing 10 per cent reservation for economically weaker sections (EWS) among the general category is “not in conflict” with the apex court judgment but pointed out that the Executive could take advantage of the “loophole” that “there is no limit on reservation now”.
Speaking to The Sunday Express, Justice Sawant also raised concern that the benefit of EWS reservation, in practice, could go to the “forward classes”.
“Legally speaking, Parliament has amended the Constitution, and the 50 per cent cap automatically changes to 60 per cent with respect to reservations in employment and education. The 50 per cent cap was for socially and educationally backward classes mandated by the SC in the Mandal verdict. We were not dealing with EWS since the Constitution did not provide for any reservation on the basis of a person belonging to EWS. Now the Constitution, through the amendment, has provided 10 per cent reservation for EWS and also, through the amendment, EWS is being defined in the Constitution with respect to the income limit and other assets. And since the 10 per cent reservation is for all castes, classes and religions, it will not violate the principle of equality. In my view, theoretically, basic structure will not violated. And it is definitely not in conflict with the Mandal verdict,” Justice Sawant said.
“However, the amendment is now increasing the total reservations up to 60 per cent. And there is no limit on reservations now. The SC had said that reservations shall not exceed 50 per cent. But the constitutional amendment does not put a cap on 60 per cent… In theory and practice, the Executive can take advantage of this loophole in the law,” he said. on 60 per cent… In theory and practice, the Executive can take advantage of this loophole in the law,” he said.
Justice Sawant was part of the nine-judge constitution bench headed by then Chief Justice M N Venkatachaliah in the Indra Sawhney vs Union of India case, which settled the legal position on reservations. The 6:3 majority verdict held that reservation, being an extreme form of protective measure or affirmative action, should be confined to a minority of seats. Justice Sawant, who had concurred with the majority view, had however observed that that in “extraordinary reasons”, the 50 per cent cap “may be exceeded”.
When asked about the majority verdict, which had stated that economic criterion cannot be the sole basis for determining reservation, and if the constitution amendment Bill was in violation with this observation, Justice Sawant said, “When we heard the case, the Constitution did not provide for reservation for EWS. And hence we said that economic criteria cannot be the sole basis for reservations. But now (through the amendment) the Constitution has defined EWS. Hence, (on this issue), the constitutional amendment is not in any violation.”
Justice Sawant, however, said that, in practice, the 10 per cent reservation will benefit the forward classes among the EWS. “The amendment says that the reservation is for EWS of all castes and religions. Theoretically, it is not objectionable at all. But in practice, what is going to happen is when the EWS of socially forward classes compete with the rest, the reservation will be for the socially forward class. Also, at the time of framing of the Constitution, when they provided reservation for socially and educationally backward classes, the framers did not provide reservation for EWS, anticipating the result,” Justice Sawant said.
President gives assent
The President gave his assent to the Constitution (One Hundred and Third Amendment) Act, 2019, on Saturday, allowing 10 per cent reservation for Economically Weaker Sections (EWS) in General Category over and above the existing 50 per cent cap on reservations in government jobs and higher education institutions. ENS