NEW DELHI: In a move which could well turn out to be a hugely emotive issue for crores of Indians, Upper Caste reservation especially with regard to availing benefits in education and jobs, Centre is likely to move a constitutional amendment to enable 10 per cent reservation in government jobs and education for economically weaker upper castes. But the move would have to stand judicial scrutiny.

As per the legal requirements, backwardness cannot be judged by any single criteria, including ‘economic backwardness’, and, such backwardness must emanate from their social and educational backwardness. This might prove to be a big challenge for the Modi government to stand scrutiny in this case.

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The last time a central government tried to give reservation just before elections was during UPA’s tenure in 2014, when it tried to woo the Jat community and decided to add them to the OBC category, which would have enabled them to avail reservations in government jobs and educational institutions. This was, however, struck down by the Supreme Court in 2015 on the ground, “caste cannot be the sole factor” in deciding backwardness. It added that “backwardness has to be social and not educational or economic backwardness”.

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The government also has to take care of the Supreme Court ruling of 1992, which states reservations cannot exceed beyond 50 per cent, and, anything above, the top court ruled, would violate equal access as guaranteed by the Constitution. However, some states have made their laws in such a way as to cross the 50 per cent reservation threshold of the apex court. Tamil Nadu, for instance, has 69 per cent caste-based reservation.

Former Additional Solicitor General Amarendra Sharan said, “The move will raise the Centre’s reservation threshold to 60%, which is contrary to the apex court earlier decision and is legally invalid. Even if the government amends the Constitution and puts it (reservation) in the ninth schedule, then, according to the apex court verdict of 2007, it can invite judicial scrutiny. There is no provision for economic reservation in the Constitution. Only educational and social backwardness merits reservations.”

How it failed earlier

The last time a central government tried to give reservation just before elections was during UPA’s tenure in 2014, when it tried to woo the Jat community and decided to add them to the OBC category, which would have enabled them to avail reservations in government jobs and educational institutions. This was, however, struck down by the Supreme Court in 2015 on the ground, “caste cannot be the sole factor” in deciding backwardness.  The apex court further added that the “backwardness has to be social and not educational or economic backwardness”