Advocate Indra Sawhney, whose plea in the Supreme Court led to the landmark Mandal judgment capping reservations at 50 per cent, has said she would soon decide whether to challenge the government’s move extending 10 per cent reservation to economically weaker sections among the general category. The law passed by Parliament, she said, violates the basic structure of the Constitution.
“Some people have approached me and have asked if I would challenge the 60 per cent reservation before the Supreme Court. Someone has already filed a petition in the Supreme Court. At present, I have not decided whether I will move the SC, I am thinking about it. Let me decide and then I will come forward,” 67-year old Sawhney told The Sunday Express.
The Constitution (124th Amendment) Bill, Sawhney said, violates Article 14 (equality before law) and Article 15 (prohibition of discrimination on the basis of religion, race, caste, sex or place of birth). “These two provisions are part of the basic structure of the Constitution. The 10 per cent reservation is for general category. It excludes the Other Backward Classes and SC/STs from this reservation, which is on economic basis… Hence, the amendment is discriminatory and is in conflict with Articles 14 and 15.”
She said the amendment is also in conflict with the Mandal verdict that clearly stated that economic criteria cannot be the sole basis for providing reservations. “Importantly, the amendment itself has not defined what is economically weaker section. They have left it to the states to decide. And each state will come up with their definition,” Sawhney said.
Sawhney also noted that the decision to reserve 10 per cent for EWS among the general category is not backed by any data and said it is also in conflict with the 2006 Supreme Court judgment on reservation in promotions. “In the Nagaraj judgment, the SC had clearly stated that the government had to provide reservations on the basis of some quantitative exercise. No such exercise was undertaken before introducing the constitutional amendment Bill.”
Sawhney was a practising lawyer when she decided to challenge then Prime Minister Narasimha Rao’s quota move in 1992. “I was witness to a protest by a student near Jhandewalan (in Delhi) against reservations. That changed everything, and I decided to fight the case,” she said.
Twenty-seven years later, she was disappointed that the government had further narrowed the opportunity for general merit students, she said. “I am of the opinion that if a reserved category student scores as much as the general merit, they should be not considered under the general merit…..also we should reduce the percentage of reservations. However, I am disappointed that with this amendment, the general category will suffer, as they have access to just 40 per cent seats of the total,” Sawhney said.