LUCKNOW: With Yogi Adityanath cabinet’s nod to the proposal of bringing ordinance providing 10 per cent reservation to economically weaker sections (EWS) in government jobs and higher educational institutions in current session of state legislature, the total figure of reservations accorded to different sections including SC, ST and Other Backward Classes (OBCs) is bound to breach the cap of 50 per cent imposed by Supreme Court.
In fact, Uttar Pradesh became the third state to implement the provision through a government order on February 18, 2019 after it was passed by the Parliament on January 14, last year just ahead of the general elections.
Prior to UP, Gujarat and the then Jharkhand government had also announced its implementation. While deciding to implement 10 per cent quota provision in accordance to the Constitution (124 Amendment) Bill, 2019, the state government has made it clear that it would be over and above existing 49.5 per cent reservation given to scheduled Castes, Scheduled Tribes and OBCs.
"The quota of 10 per cent to EWS will be implemented without tampering with the existing provisions for OBCs, SC and ST," said Shrikant Sharma, government spokesman and state power minister. At present, the break-up of caste-based reservation in Uttar Pradesh stands out to be total 49.5 per cent. Of this, 7.5 per cent quota is accorded to Scheduled Tribes, 15 per cent to Scheduled Castes and 27 per cent to OBCs.
If the 10 per cent extra reservation for EWS is also taken into account, it would be 59.5 per cent.
After the implementation of EWS quota, only 40.5 per cent of seats will left under the general category which accounts for admissions to higher educational institutions and placement in government enterprises including civil services on the basis of merit of candidates.
The government reasons it out by claiming that while 49.5 per cent existing quota is caste based, provision for EWS will be based on economic stature of the aspirant. It will be carved out of the 50.50 per cent merit quota. "So it would not fall in the category of the quota limit defined by the apex court and hence it will withstand any legal scrutiny," says a senior state government official seeking anonymity.
However, the Supreme Court had opined that an increase in reservations could compromise the merit. As a consequence of the 10 per cent EWS quota, the merit quota will now shrink by 10 per cent to 40.5 per cent in UP.
Prof AK Mishra, a constitutional expert and professor in Political Science Department of Lucknow University, contends that 50 per cent cap on reservations imposed by the Supreme Court is only for caste-based reservations, and EWS reservation won’t be impacted by it. "The Centre has already implemented it in public sector units and there also it exceeded 50 per cent quota limit, if it could bear up the scrutiny there, same will happen in UP," says Prof Mishra.
He adds that the cap of 50 per cent was put by Supreme Court not on the basis of any constitutional provision. "Rather it was based on the common understanding of socio-economic issues. It will not have any constitutional constraint as the Parliament has already passed the bill. What Supreme Court has defined is just a ruling. Many states in down south have crossed this limit," maintains Prof AK Mishra.
On the other, Subhash Kashyap, another constitutional expert feels that it will depend upon the provisions in the bill passed by the state assembly. "Though the Supreme Court has definded the limit for reservation, there have been some exceptions in some states where it has exceeded the limit. It will depend upon the provisions of the Bill that if it is an exception or a violation of apex court ruling," says Kashyap.
However, in a few states like Tamil Nadu, the reservation is 69 per cent. This limit of 50 per cent was set by the A nine-judge bench decision of the SC in Indira Sawhney case in 1992 to avoid the vote-bank politics of providing quotas thus compromising the merit. Tamil Nadu has a law which has been inserted into the 9th schedule of the Constitution to immunize it from judicial review.
So the limits imposed by the nine-judge bench in 1992 would be the major litmus test for this bill. The Gujarat Government had already brought an ordinance to provide 10 per cent quota for EWS in the forward castes. However, in August 2016, the Gujarat High Court had quashed this ordinance. The appeal against that judgment is pending in the Supreme Court.