103rd Constitution Amendment Act, 2019: The Constitutional Correctness of the Amendment
By Alivya Sahay
Abstract
Few debates excite as much passion in India as those on reservations. Alongside land redistribution and judicial independence, reservation policies have seen the most tussles between the courts and legislatures; the 103rd Constitution Amendment Act being the latest affirmative policy taken by the legislature, which is now under the scrutiny of the Court.
The recent 103rd Amendment Act, 2019 amends Articles 15 and 16 of the Constitution, which would now enable the Parliament and all state legislatures to make special provisions for the advancement of any Economically Weaker Sections of citizens (hereinafter referred to as “EWS”). A maximum of 10% cent of reservation in educational institutions can now be made in private schools and colleges are included, but those run by minorities are excluded. Further 10% of the appointments and posts can now also be reserved for the EWS.
In the light of the above facts the author in this paper has discussed in detail about the 103rd Constitutional Amendment Act, 2019 in context of the features of the Act and the concept of Economic Weaker Sections. Post this, the author has pointed out the legal hurdles which this Act faces and the way which lies ahead.
Introduction
A whopping 10% of economic based reservation has been introduced in India by the 124th Constitutional Amendment Bill [now the Constitution (103rd Amendment) Act]. The Act aims to provide for a 10% reservation for economically weaker sections of the society. The President of India, Shri Ram Nath Kovind gave his assent to the said Constitutional Act, on the 13th of January 2018, as notified in the Official Gazette by the Central Government. The Constitutional Bill, 2019 was passed in the Lok Sabha by the 326 members who were present and voting; with 3 members voting against it and consequently, the same was passed by the Rajya Sabha as well. The main highlight of this bill is to provide reservations to the economically weaker sections of the upper caste in the job sector as well as in government and private institutions of education. The quota of reservation introduced is “in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.”¹
Attempts have been made earlier to chisel out a substantial amount of quota for the EWS, but have ultimately failed because the same was not able to pass legal assemblage. In 1991, the P. V. Narasimha Rao government had proposed 10% reservation for the poor among the forward castes.² But to this, the court held that a provision for separate reservation for economically poor among forward class was invalid as Article 15(4) provided for only socially and educationally backward classes and not economically backward classes. Henceforth, the attempt made by the Narsimha Rao’s government fell flat on to its face as it violated the judicially evolved doctrine of 50% ceiling. The same line of opinion was followed in the case of Indra Sawhney v. Union of India.³ A Constitutional Bench of the Supreme Court comprising of nine-judges pointedly answered the question “whether backward classes can be identified only and exclusively with reference to the economic criterion.” The bench uniformly held that the reservation cannot be provided on the basis of economic grounds only. Then, in August 2016, the Gujarat government set out a similar ordinance, of providing 10% quota to upper castes. However, the Gujarat High Court quashed the ordinance on the ground that there is no provision in the Constitution empowering State to provide reservations to EWS.
Features of the Act
There has been an amendment in Article 15 and Article 16 respectively. By the virtue of this Act, Article 15(6) is added along with Article 16(6). Article 15(6) caters reservation to the economically weaker section of the upper caste and the special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. This respective Amendment aims to provide reservation to those who do not fall in Articles 15(5) and 15(4) (effectively Scheduled Castes, Scheduled Tribes and Other Backward Classes).⁴ Article 16(6) is aimed at providing reservation to people who belong to the economically weaker section of the society. The parameter of judging the economic weakness shall be decided on the basis of “family income” and other “indicators of economic disadvantage” and as such, would be notified by the State from time to time. Unlike the historical debates, the “economic criterion” today is not proposed as a competing idea to caste and community, but as an allied one.⁵ The amendment brought about in the Constitution aims to fulfill the duty that has been enshrined under Article 46 of the Directive principles of the State policy. The economically weaker sections of the society have not been able to benefit from the fruits of the policies of the government whereas, on the other hand, the socially disadvantaged and marginalized sections have considerably enjoyed the same via the policy of reservation. The state of Gujarat has become the foremost state to implement the 10% quota reserved for the economically weaker section as under the 103rd Constitutional Amendment.
The definition of Economically weaker section (hereinafter, EWS) as under Article 15(6) is “as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.”
The proposed 124th Constitutional Amendment Bill (which is now Constitution 103rd Amendment Act) defines EWS as one having:
· Annual household income below Rs. 8 lakh;
· Agriculture land below 5 acres;
· Residential house below 1000 sq. feet;
· Residential plot below 100 yards in notified municipality; and
· Residential plot below 200 yards in non-notified municipality area.⁶
Legal Challenges to 103rd Constitutional Amendment Act, 2019.
The constitutionality of 103rd Constitutional Amendment Act, 2019 has already been challenged before the Apex Court. Some of the grounds on which the Amendment has been challenged are listed below:
1. Contrary to the dictum of Indra Swahney
The leading opinion in Indra Swahney v Union of India⁷ authored by Hon’ble B.P Jeevan Reddy ruled that the “backwardness” under Article 16(4) is mainly social and not both social and educational. The nine-judge Bench in this case held that economic criterion alone cannot be taken as a measure of backwardness under Article 16(4). It was held by the Court that the State can provide reservation even under Article 16(1) to other classes provided that there are exceptional circumstances that necessitate reservation in public interest.
In the case of Indra Swahney, one of the questions was also in regard of the constitutionality of an official memorandum that made provision for 10% reservation to other economically backward sections. The Court however in this case ruled that classification based on income or property holding is not sustainable even under Article 16(1) as it is inconsistent with the guarantee of equality of opportunity.⁸
2. Absence of requirement of inadequacy of representation:
Under Article 16(4), State can grant reservation in favor of Backward Classes only if it is satisfied that they are inadequately represented in the services. This preposition was further strengthened by the Apex Court in the case of M Nagaraj v. Union of India⁹ wherein it was held that inadequacy of representation is a constitutional requirement without which the structure of equality of opportunity would collapse. Article 16(6) added by the recent amendment does not contain the limitation of the inadequacy of representation of EWS in public services as a condition to granting them the reservation. As a result, this argument can be put up against reservation on economic basis as introduced by Article 15(6) and Article 16(6).
3. Arbitrariness:
The 103rd Constitutional Amendment can be attacked upon the grounds of arbitrariness i.e., the family income criterion has no relation with the goal of reservation. In simple words reservation is not the remedy to the problem of poverty (reservation is about compensating for social and institutional barriers to representation). This makes mandating reservation on economic disadvantage arbitrary.¹⁰
4. Economic Reservations and Basic Structure:
In order to determine whether the Economic Reservations provided under 103rdConstitutional Amendment are violative of the Basic Structure or not, the Supreme Court needs to examine the principles on which affirmative action is based upon. As per M Nagraj and Others v. Union of India,¹¹ the Courts needs to apply two tests in order to check whether the Reservation policy is constitutional or not.
First is the width test, which is based upon the boundaries of the amending power. The width testincludes examination of four issues — (i) Quantitative limitations, for e.g.: violation of the 50% ceiling for all reservations taken together; (ii) Exclusion of creamy layer or qualitative exclusion (iii) Compelling reasons such as backwardness of the economically weaker sections for whom this reservation has been made; and (iv) Overall administrative efficiency is not obliterated by the new reservation.¹²
The second is the identity test, wherein the Apex Court needs to examine that whether the new amendment would alter the identity of the Constitution or not. If yes, then the Court will strike down the Amendment as unconstitutional, or else, the Amendment is constitutionally correct.¹³
The court in this case need to examine the equality code of the Constitution and check whether the state has considered and valued the circumstances justifying it, to make reservation. This would require that the state’s decision is rational and non-arbitrary. The state needs to show quantifiable data to satisfy the court as to inadequacy of representation of economically backward classes. If the Government proves the same then the 103rd Constitutional Amendment Act, 2019 is constitutionally correct.¹⁴
Conclusion
There are many hefty arguments which are against the policy of reservation that is based purely on economic basis, but it must be viewed from a bird’s eye that the basic structure challenge to a constitutional amendment has to meet a greater pedestal of unconstitutionality. The author believes that the Constitution of India does not completely bar reservation. In the landmark case of Indra Sawhney, the Hon’ble Court was of the opinion that BC can be analyzed on the footing of occupation and income criteria without making any reference to castes. The Court in this case made an observation that “there may be some groups /classes in whose case caste may not be relevant. For example, agricultural labourers, Rickshaw pullers/drivers, street-hawkers etc. may well qualify for being designated as BC”.
The ambit of the policy of reservation is not confined only to caste grouping but can be extended and made flexible to other weaker sections that have endured social injustice because of their economic and educational backwardness and inability to climb the ladder of economic up gradation.
The admits that we have reached the point in the human history to do away with ancient, traditional caste-based approach of backwardness, however, the aim and objective of the policy of reservation is and should not be stooped to the level of poverty mitigation programme or a step towards assuage the general public.
[1] The Constitution (103rd Amendment) Act, 2019.
[2] S. Nair,Constitution (103rd Amendment) Act, 2019: 10% reservation for economically weak in general category comes into force, Jagran Josh, (15/1/2019), available at https://www.jagranjosh.com/current-affairs/union-cabinet-approves-10-per-cent-reservation-for-economically-weak-among-upper-caste-1546925703-1 (last seen on 5/6/2019, 7:00 a.m.).
[3] Indra Sawhney v. Union of India,(1992) 3 SCC 217.
[4] Ibid.
[5] M.A. Bhat, Why Reservations Have to be About Social and Not Just Economic Disadvantage, The Wire, 25/11/2016 available at https://thewire.in/politics/despite-its-ressurection-economic-criterion-remains-an-inadequate-determiner-of-reservations (last seen on 5/6/2019, 6:00 p.m.)
[6] Supra 1.
[7] Supra 3.
[8] Ibid.
[9] M Nagaraj v Union of India, (2006) 8 SCC 212.
[10] G. Bhatia, Is 103rd Amendment Unconstitutional ?, Indian Constitutional Law and Philosophy, available at https://indconlawphil.wordpress.com/2019/01/13/is-the-103rd-amendment-unconstitutional/, last seen on (12/06/2019, 1:30 p.m.).
[11] Supra note 9.
[12]Prof. F. Mustafa, An Expert Explains: New Quota and Basic Structure, The Indian Express, (15/01/2019), available athttps://indianexpress.com/article/explained/10-percent-quota-reservation-economically-weaker-section-supreme-court-5538470/, (last seen on 19/01/ 2019, 4:00 p.m.)
[13] Id.
[14] Id.
The author is a Year III B.A., LL.B student at Chanakya National Law University, Patna.
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