A section of legal experts today was of the view that Gujarat government's decision to give 10 per cent reservation to the Economically Backward Classes (EBCs) would not stand the current legal test though some felt it can survive if the apex court were to reconsider its 1992 judgement.
Senior advocate Girish Patel said reservation cannot be granted purely on the ground of economic backwardness as it is not a criterion considered by the Constitution.
Citing the 1992 judgement of the Supreme Court in Indra Sawhney V/s the Union, Patel said the quota also cannot exceed 50 per cent, and with 10 per cent EBC quota, the total reservation in Gujarat will be 59 per cent.
"In that landmark judgement, apex court also declared separate reservations for economically backward among general castes as invalid, as the Constitution does not have that provision," said Patel.
The Constitution takes into account the educational and social backwardness but not the economic condition, and therefore the state may lose in the court if the EBC quota is challenged, he said.
"If you go by the economic condition, than entire country would become eligible for reservation. I believe reservation for EBC will not stand in the court of law, as it violates the SC verdict as well as the basic object of reservation as mentioned in the Constitution," added Patel.
Another senior lawyer, Yatin Oza, cited a Gujarat High Court verdict of 1994 and claimed the new provision will fall through in the court.
"Hearing a case about reservation to economically
backward classes in 1994, the Gujarat High Court mentioned that the provision of EBC is 'unknown and foreign to the Constitution'. I believe the EBC quota would not stand in the court," said Oza.
However, some experts believe that government may have a chance if the Supreme Court decides to reconsider the 1992 judgement.
Senior lawyer Krishnakant Vakharia said efforts should be made to include poverty as one of the criteria to provide reservation.
"I welcome this move by the state government, but it violates the past Supreme Court verdict. I think the court can reconsider its judgement, which took into account castes as the
main criteria, not poverty," said Vakharia.
"In the Constitution, education and social background are the only criteria while poverty is not mentioned. So the Supreme Court, citing that criteria, rejected the EBC quota earlier. Efforts should be made from all quarters to include poverty as one of the criteria," added Vakharia.
Another senior lawyer, Vijay Patel, backed this view.
"Reservation rules in India are not governed by any law, but by the 1992 Supreme Court verdict which had put a cap of 50 per cent. There were instances when the Supreme Court reviewed its own judgements," he said.
"In the case of a legal battle, the Supreme Court can take a call to review its 1992 judgement and it may give a favorable judgement. So doors are still open for state government to go ahead with the 10 per cent EBC quota," said Patel.
