Rattled by the erosion in upper caste votes in the recent Assembly elections in Rajasthan, Madhya Pradesh and Chhattisgarh, the BJP government has attempted to recover this traditional vote base through an unapologetic political manoeuvre. It has sought to provide a 10% quota for economically weaker sections in public employment and educational institutions. That this is more an election-time signal to upper castes than a genuine attempt to revisit social justice policy is clear for at least two reasons. The 124th Constitution Amendment Bill will have to be passed by two-thirds of the MPs present and voting, and the challenge will be to drum up the numbers in both Houses. And, it is doubtful if it will stand judicial scrutiny. If enacted, the 50% limit on total reservation laid down by the Supreme Court will be breached. (The court did allow for a higher percentage in extraordinary situations, but it does not apply in this case.) Even if it is arguable that such a move will create deserving opportunities to those outside the purview of caste-based reservations, in Indira Sawhney a nine-judge bench had struck down a provision that earmarked 10% for the economically backward on the ground that economic criteria cannot be the sole basis to determine backwardness. Any attempt to amend the Constitution to extend what is limited to the “socially and educationally backward” to those economically weak is problematic.
If the amendment is challenged, a question that will arise is whether financial incapacity warrants special treatment. With the income ceiling for eligibility likely to be fixed at ₹8 lakh a year — the same as the ‘creamy layer’ limit above which OBC candidates now enjoying reservations become ineligible — an uneasy parity has been created between socially and educationally backward classes with limited means and those who are socially and educationally advanced with the same limitation. The other issue that has come up frequently when quotas are increased by State governments is that exceeding the 50% limit offends the equality norm. In Nagaraj (2006), a Constitution Bench ruled that equality is part of the basic structure of the Constitution. It said the 50% ceiling, among other things, was a constitutional requirement without which the structure of equality of opportunity would collapse. There has been a string of judgments against reservations that breach the 50% limit. Another issue is whether reservations can go to a section that is already adequately represented in public employment. It is not clear if the government has quantifiable data to show that people from lower income groups are under-represented in its service. Reservations have been traditionally provided to undo historical injustice and social exclusion suffered over a period of time, and the question is whether they should be extended to those with social and educational capital solely on the basis of what they earn.