The Constitution (One Hundred and Third Amendment) Act, 2019 provides for reservations for Economically Weaker Sections of the country, excluding the Scheduled Castes, Scheduled Tribes, and Other Backward Castes. In this study, the validity and legitimacy of the amendment have been analysed. The paper criticizes the amendment on the basis of the 50 per cent rule and the Basic Structure Doctrine. The structural flaws which have originated in the incorporation of the Act have also been highlighted. The findings of the study reveal that the amendment is nothing but propaganda of the government for the appeasement of the general public.
Introduction
The Constitution (One Hundred and Third Amendment) Act, 2019 came into force on 14th January 2019[1]. The act introduces reservations on the basis of economic criteria by providing 10% reservations for the Economically Weaker Sections (EWS), which shall exclude the EWS belonging to the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Castes (OBCs) in educational institutions and government jobs. The ‘Economically weaker sections’ shall be defined by the State from time to time on the basis of family income and other indicators of economic disadvantage[2].
The amendment introduced new clauses to Article 15 and Article 16 of the Constitution empowering the government to provide reservation on the basis of economic backwardness[3]. The sixth clause which was inserted in article 15 (prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth[4]) provides for the reservation of up to 10% of seats for the EWS for admission in educational institutions including private aided or unaided institutions except for minority educational institutions which are protected under Article 30(1) of the Constitution[5]. Article 16 (Equality of opportunity in matters of public employment[6]) was also amended and a clause was added which permits the government to reserve up to 10% of all positions for the “financially weaker portions” of citizens[7].
Arbitrary Violation of the Rudiments of Reservation
Reservation in India was introduced as a remedial measure to uplift the socially and economically backward castes as they have been subjected to discrimination for innumerable years. The said amendment oversteps the very foundation of reservations in the country. It introduces reservation for the economically weaker sections excluding the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Castes (OBCs). The aforementioned increases the representation of the upper castes and further elevates the problem of destitution, as the seats which should be provided to the unprotected are now provided to the upper castes and their representation is further decreased.
In the constitutional assembly debate dated November 25th, Dr. Ambedkar had said:
“We must begin by acknowledging the fact that there is complete absence of two things in Indian society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty[8].”
He had acknowledged economic inequality in our country but he advocated that reservation should be solely based on caste discrimination. He contended that reservation be made only for those people who have not been fairly represented in the country.
Pure financial ability is a transient criterion; it doesn’t place people into a definite group requiring special privileges[9]. If anything, allowing for reservation on such a principle only further fortifies the ability of powerful castes to retain their positions of authority, by creating an even greater monopolisation of their share in administration[10]. The Supreme Court has repeatedly held that economic backwardness cannot be the sole criterion for reservation, and reservation only provides a right of access for the under-represented classes and is not an anti-poverty programme[11].
50% Ceiling
The said amendment adds a 10% reservation for the EWS, in addition to the existing categories of reservation. The additional 10% results in the increase in the total percentage of reservation in our country to 59.5%. The Supreme court has by a catena of decisions made it clear that the total amount of reservation should not cross 50%. This rule was laid down in M.R. Balaji v State of Mysore:
Reservation should and must be adopted to advance the prospects of weaker sections of society, but while doing so, care should be taken not to exclude admission to higher educational centres of deserving and qualified candidates of other communities. Reservations under Arts. 15 (4) and 16(4) must be within reasonable limits. The interests of weaker sections of society, which are a first charge on the States and the Centre, have to be adjusted with the interests of the community as a whole. Speaking generally and in a broad way, a special provision should be less than 50% [12]
The rule laid down in Balaji was affirmed in Indra Sawhney v Union of India, where a similar governmental notification adding a 10% reservation for the economically backward classes was introduced. It was held:
The provision under Article 16(4) – conceived in the interest of certain sections of society – should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. It is relevant to point out that Dr. Ambedkar himself contemplated reservation being “confined to a minority of seats”. No other member of the Constituent Assembly suggested otherwise. It is, thus clear that reservation of the majority of seats was never envisaged by the founding fathers. From the above discussion, the irresistible conclusion that follows is that the reservation contemplated in Clause (4) of Article 16 should not exceed 50%[13].
As stated in the Indra Sawhney judgement, Dr. Ambedkar foresaw the possibility that political compulsions may lead to unconstrained levels of reservation[14]. In a constituent assembly debate in 1948, he had said:
Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the state, and only 30 per cent are retained for the unreserved. Could anybody say that this is satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. . . Therefore, the seats to be reserved must be confined to a minority of seats. . . If honourable Members understand this position that we have to safeguard two things namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as “backward” the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain[15].
The rule has been re-affirmed by the Supreme Court time and again. In M. Nagaraj v. Union of India, it was held that the State will have to ensure that its reservation provisions do not contravene the 50% rule[16].
The centre has also followed the rule, as in 2017, the legislation enacted in Telangana, which increased the reservations for Muslims in the state from 4% to 12% and for STs from 6% to 12%, leading to the total reservations in the state amounting to 62% was rejected by the Centre citing the ‘50% rule’[17]. Similar legislations passed by the Andhra Pradesh government in 2017[18] and Maharashtra government in 2018[19] were also rejected on the same grounds.
Basic Structure Doctrine
The said amendment has amended the constitution of India. Therefore, the only challenge that remains is the Basic Structure Doctrine laid down in the Keshavananda Bharati case. The crucial question surrounding the validity of the amendment is whether the 50% ceiling is a part of the Basic Structure. The court answered the question in M. Nagaraj v. Union of India, in which it held:
The ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, the inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse[20].
In I. R. Coelho Vs. State of Tamil Nadu, it was held that the constituents of the ninth schedule are not immune to judicial review and shall be judged on the basis of the Basic Structure Doctrine. Therefore, every amendment to the constitution, including an amendment to the Ninth Schedule are included under the Basic Structure Doctrine[21].
Structural flaws
The said amendment suffers from various structural flaws that have been ignored since its incorporation. The amendment’s Statement of Objects and Reasons states that:
However, economically weaker sections of citizens were not eligible for the benefit of reservation. With a view to fulfil the mandate of Article 46, and to ensure that economically weaker sections of citizens to get a fair chance of receiving higher education and participation in employment in the services of the State, it has been decided to amend the Constitution of India[22].
The amended articles provide reservations for Economically Weaker Sections excluding Scheduled Castes, Scheduled Tribes, and Other Backward Castes. Per contra, Article 46 which has been mentioned above in the Statement of objects and reasons provides for promotion of economic and educational interests of the Scheduled Castes, Scheduled Tribes, and Other Backward Castes in particular.
Secondly, the Statement of Objects and Reasons also states that the EWS includes categories of people that have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity. It is submitted that the aforementioned statement has not been backed by any statistical or empirical data.
Thirdly, the income limit for the EWS category is Rs. 8 lakhs, which is also the limit for determining the creamy layer of the Other Backward Castes. The income limit for determining economic backwardness cannot be the same as that for determining the ‘creamy layer’ for OBC; it must be lower[23].
Conclusion
The researcher has reached the conclusion that the Constitution (One Hundred and Third Amendment) Act, 2019 does not stand the test of validity under the Basic Structure Doctrine. The amendment is filled with structural flaws as there is proven inconsistency in the Statement of objects and reasons of The Act. The amendment oversteps the reasoning of the reservation system in India i.e. to uplift the socially and educationally backward. It can be fairly concluded that the amendment is another manoeuvre of the government to appease the general public of the country. Therefore, the Constitution (One Hundred and Third Amendment) Act, 2019 is ultra vires of the Constitution.
Frequently Asked Questions
- What is the Constitution (One Hundred and Third Amendment) Act, 2019?
- Does the Constitution (One Hundred and Third Amendment) Act, 2019 stand the test of constitutionality?
- Is the Constitution (One Hundred and Third Amendment) Act, 2019 ultra vires?
- Does the Constitution (One Hundred and Third Amendment) Act, 2019 violate the Basic Structure of the Constitution?
References
- https://www.thehinducentre.com/publications/policy-watch/article26455910.ece/BINARY/Policy%20Watch%20No.9.pdf
- https://www.inc.in/en/media/speech/speech-at-the-constituent-assembly-of-india
- https://seclpp.wordpress.com/2019/02/14/103rd-constitutional-amendment-act-an-analysis-of-its-constitutional-validity/
- https://indconlawphil.wordpress.com/2019/01/13/is-the-103rd-amendment-unconstitutional/
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3543312
- https://indiankanoon.org/
- http://www.scconline.com.elibraryhnlu.remotexs.in/
- https://elibraryhnlu.remotexs.in/user/login?dest=http%3A%2F%2Fwww.jstor.org.elibraryhnlu.remotexs.in%2Faction%2FdoBasicSearch%3FQuery%3DReservations%2Bin%2BIndia%2B%25E2%2580%2593%2BA%2Bconstitutional%2BPerspective
- https://timesofindia.indiatimes.com/india/bill-for-10-reservation-for-poor-in-general-category-challenged-in-sc/articleshow/67470805.cms
- https://www.thehindu.com/opinion/lead/a-test-of-law-and-justice/article28449146.ece
[1] http://egazette.nic.in/WriteReadData/2019/195203.pdf
[2] ET Bureau, ET Explains: What is Constitution (One Hundred And Twenty-Fourth Amendment) Bill, 2019? (2019), https://economictimes.indiatimes.com/news/et-explains/et-explains-what-is-constitution-one-hundred-and-twenty-fourth-amendment-bill-2019/articleshow/67448343.cms (last visited Jul 5, 2020).
[3] Krishnadas Rajagopal, SC reserves order on sending 10% quota challenge to Constitution Bench The Hindu (2019), https://www.thehindu.com/news/national/sc-reserves-order-on-sending-10-quota-challenge-to-constitution-bench/article28776203.ece (last visited Jul 5, 2020).
[4] Indian Constitution, Article 15
[5] Supra note 2
[6] Indian Constitution, Article 16
[7] Supra note 2
[8] Ambedkar, B.R. 1949. “Speech at The Constituent Assembly of India”, Indian National Congress, November
25. [https://www.inc.in/en/media/speech/speech-at-the-constituent-assembly-of-india].
[9] Suhrith Parthasarathy, A test of law and justice The Hindu (2019), https://www.thehindu.com/opinion/lead/a-test-of-law-and-justice/article28449146.ece (last visited Jul 6, 2020).
[10] ibid
[11] Ashok Vardhan Shetty, Can the ten per cent quota for economically weaker sections survive judicial scrutiny, The Hindu Centre for Politics and Public Policy
[12] M.R. Balaji v State of Mysore, 1963 AIR 649
[13] Indra Sawhney v Union of India, AIR 1993 SC 477
[14] Supra note 8, at 10.
[15] Constituent Assembly Debates. 1948. “Constituent Assembly of India Debates (Proceedings)”, November 30, Vol. 7. [https://cadindia.clpr.org.in/constitution_assembly_debates/volume/7/1948-11-30].
[16] Nagaraj v. Union of India, (2006) 8 SCC 212
[17] Telangana raises Muslim quota to 12% taking state’s total quota above SC limit Hindustan Times, https://www.hindustantimes.com/india-news/telangana-assembly-passes-bill-increasing-quota-for-muslims-scs-and-sts-to-12-state-s-total-quota-goes-above-sc-limit-of-50/story-ZCArBKggR7f5nqnRQ3jVnI.html
[18] AP government tables Bill for 5% Kapu reservation: Vijayawada News – Times of India, https://timesofindia.indiatimes.com/city/vijayawada/ap-government-tables-bill-for-5-kapu-reservation/articleshow/67878975.cms (last visited Jul 8, 2020)
[19] Maharashtra Govt Approves 16 Per Cent Reservation For Marathas In Education, Jobs https://www.outlookindia.com/, https://www.outlookindia.com/website/story/maratha-quota-bill-to-be-introduced-and-passed-before-end-of-winter-session-maharashtra-minister/320925 (last visited Jul 8, 2020)
[20] Supra note 16.
[21] I. R. Coelho Vs. State of Tamil Nadu, [(1999) 7 SCC 580]
[22] Lok Sabha. 2019. “The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019”.
[https://barandbench.com/wp-content/uploads/2019/01/Constitution-124th-Amendment-Bill-2019.pdf].
[23] Supra note 8, at 25.
