As the Lok Sabha passed a Bill to provide 10 per cent reservation to economically weaker sections in the general category, former Chief Justice of India A M Ahmadi, who was part of the landmark 1992 Mandal Commission verdict, which capped reservation at 50 per cent, said Tuesday that the BJP-ruled government’s move is “directly in conflict” with the Supreme Court judgment on reservations.
Speaking to The Indian Express, Justice Ahmadi also said that the apex court’s 50 per cent ceiling was to ensure that “reservations are not introduced, and the limit increased, only for election purposes”.
“Economic criterion cannot be the sole basis for determining the backward class of citizens contemplated by Article 16 of the Constitution. That is what we had decided in the majority judgment. This is in black and white. In my view, the government’s decision conflicts with the majority view of the Constitution bench of the Supreme Court,” he said.
Justice Ahmadi also wondered whether the government had consulted Attorney General K K Venugopal. “I think it (10 per cent reservation for the general category) requires a more deeper study. I don’t know if they had taken the opinion of the Attorney General of India before going through this exercise…It is an important Constitutional decision.
He is an independent man. I remember that he had led the arguments against the government when we were hearing the matter,” he said.
Justice Ahmadi 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. “Even though the Constitution does not lay down any specific bar but the Constitutional philosophy being against proportional equality the principle of balancing equality ordains reservation, of any manner, not to exceed 50 per cent,” the majority view had said.
The Constitution bench had held that “Economic backwardness may give jurisdiction to state to reserve provided it can find out mechanism to ascertain inadequacy of representation of such class. But such group or collectivity does not fall under Article 16 (1).”
Asked if the government’s decision to exceed the 50 per cent ceiling was legally valid, Justice Ahmadi said: “The judgment clearly mentions that reservations should not exceed 50 per cent. The Supreme Court had put a cap so that reservations are not introduced, and the limit increased, only for election purposes. With this decision, now what remains is just 40 per cent.”
“Chances of employment for others will shrink. And within the 40 per cent, there is a big population of the country looking for employment. The government is not coming up with new jobs. Various statements were made that the government will create jobs. Make in India has not happened. If it had happened, there would have been jobs. So it seems to me that it is an election gimmick.”
On whether the Constitutional amendment, if challenged, will stand the scrutiny of the court, he said: “It is in violation of the Supreme Court decision on the 50 per cent cap on reservations. We have to wait and watch how the courts will interpret it if it is challenged.”
Pointing to the Mandal Commission judgment, Justice Ahmadi said that relaxation can take place for people in far-flung and remote areas only in an extraordinary situation. “The reservations contemplated in Clause (4) of Article 16 should not exceed 50 per cent. While 50 per cent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people,” states the 1992 majority verdict.
“It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out,” it states.