New Delhi: The upper caste reservation may not stand the Supreme Court’s test and it may not materialise in near future, but it will certainly sway the voters in the Lok Sabha elections. The Congress, too, gambled in 2014 with a similar quota for Jats in government jobs and educational institutions by including them in the category of OBCs. The decision, however, failed at the altar of the Supreme Court, on the ground that backwardness has to be social and not just educational or economic; also, caste cannot be the sole factor.
The constitutional bill being pressed by the Modi government rests on “economic backwardness” that has been already struck down by the court in the aforesaid judgment and hence it will be difficult for it to cross the judicial threshold, which also does not permit any reservation beyond 50%. The BJP government of Devendra Fadnavis in Maharashtra has also announced 16% reservation for the Marathas under a new socially and economically backward category, as recommended by the state backward class commission.
The decision has, however, not yet cleared legal scrutiny, as the matter is being still heard in the Bombay High Court.
Economists say if the criteria cited by the officials for 10% reservation for upper castes passes the judicial test, it will inadvertently benefit the Muslims in a big way, which the BJP may not have gambled for. The timing of the reservation is critical, as it would take months before it can be challenged in court, and by then the BJP would have taken advantage of it the elections.
However, to become a law, a Constitution amendment is needed which requires passage of the Bill by each House of Parliament by two-thirds majority and then ratification by the legislatures of not less than half of the states. This is a very long procedure and until then the quota benefit does not accrue to anybody. The government will have to bring the Bill in the Rajya Sabha to survive beyond the elections, as otherwise any Bill brought in the Lok Sabha lapses after the elections.
The government does not have even a simple majority in the Rajya Sabha and as such it may not be able to get the Bill, which requires two-third majority, passed. Nor will it gain that many numbers in the Upper House even in the next three years to get the Bill passed. In Indra Sawhney vs Union of India, 1992, the Supreme Court had capped caste-based reservation at 50%, ruling that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality.
The total reservation is 49% at the moment and if 10% reservation is given to the upper caste poor, then the total would be 59%. The government has stated through sources that this was long a pending demand of 17 years that cannot wait lest it creates a social unrest with unforeseen results.