India: Economic Reservations: A Constitutional Challenge

INTRODUCTION

The Constitution (One Hundred and Twenty-Fourth Amendment) Bill, 2019, was introduced in the Lok Sabha on January 08, 2019, with an aim to provide reservation in higher education and public employment to 'economically weaker sections' of the society. The Bill was passed in the Lower House of the Parliament with only three members voting against it out of the 326 members present and voting, and subsequently being passed by Rajya Sabha as well without any recommendations. On being approved by both the Houses of the Parliament, when the President of India gave his assent to the Bill, the Constitution (One Hundred and Third Amendment) Act, 2019, came into force with effect from January 14, 2019 as notified in the official gazette by the Central Government.

This hurried passage of the amendment has raised certain doubts on the intentions of the Government, questioning the democratic accountability. However, this Article does not delve into the political issue of the amendment and will be limited to the discussions on the legal perspective, critically analyzing the provision as to whether it is constitutionally valid.

THE AMENDMENT

The provisions that have been amended by the Constitution (103rd Amendment) Act, 2019, are Articles 15 and 16 wherein Clause 6 has been inserted to the Articles as follows:

"In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:

(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—

(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and

(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such 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, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category.

Explanation — For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage."1

"In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:—

(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category."2

ANALYSIS

The amendment to Article 15 of the Constitution relates to advancement of economically weaker sections of the citizens and their reservation for admission to educational institutions (including private institutions, aided or unaided by the State), whereas Clause 6 of Article 16 relates to reservation of economically weaker sections in case of public employments. The explanation appended to the amended Article provides for the meaning of "economically weaker sections" which shall be decided by the State from time to time on the basis of "family income" and "other indicators of economic disadvantage". It is pertinent to note that the reservations made for the economically weaker sections would be to a maximum limit of ten percent, in addition to the existing reservations provided under the Articles and would exclude the classes that have already benefited by way of the previous clauses of the Articles (i.e. Scheduled Castes, Scheduled Tribes and Other Backward Classes).

CHALLENGE

The Constitutional 103rd Amendment has been challenged by way of a petition filed in the Supreme Court by a non-governmental organization named Youth for Equality and several others, on the ground that the amendment violates the basic structure of the Constitution and it exceeds the capping of fifty percent as fixed for reservations by the Apex Court. It is argued that the 103rd amendment is in violation of the basic structure because there is a contradiction in the logic of the existing provisions of Article 15 and 16 and the amended provisions. Moreover, the amendment provides for a ten percent economic reservation over and above the existing reservations, which implies that the reservation would exceed the 50 percent capping as set up by judicial precedents, because the present status of reservation quota has already reached 50 percent. Another argument of challenging the constitutionality of the amendment is that of arbitrariness. The definition of "economically weaker sections" is arbitrary in the sense that it does not specifically provide as to what constitutes 'other indicators of economic disadvantage' and the definition is left to be determined by the State from time to time.

BASIC STRUCTURE DOCTRINE

Until the case of I.C. Golaknath v. State of Punjab3, the Supreme Court had been holding that any provision of the Constitution of India, including the Fundamental Rights, could be amended by passing a Constitution Amendment Act, as per the requirements of Article 368. However, in the case of Golaknath, the previous decisions were overruled and it was held that the Fundamental Rights contained in Part III of the Constitution would be excluded from the ambit of the power of amendment conferred by Article 368, thereby making the Fundamental Rights not amendable.

A full bench was constituted in the case of Kesavananda Bharati v. State of Kerala4, wherein the landmark "basic structure doctrine" was laid down by the Hon'ble Supreme Court of India, overruling the 1967 judgment of Golaknath. According to this doctrine, the objectives specified in the Preamble, contain the basic structure of the Constitution and the same cannot be amended in exercise of the powers conferred under Article 368 of the Constitution. The Parliament could not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the basic structure or framework of the Constitution.5 Any amendment of the Constitution which affects the basic features in the abovementioned manner is liable to be interfered with by the Court on such a ground. So far as the question lies as to what constitutes a 'basic feature', it would be determined by the Court in each case that comes before it.6 Nonetheless post the Kesavananda Judgment, a large number of features have been acknowledged as basic feature of the Constitution by various judgments.

An obvious understanding of the basic structure doctrine makes it clear that all it requires is that a basic feature, equality in this case, is not damaged or destroyed and it is difficult to see how the economic reservations would damage or destroy the concept of equality. The government has sought protection under the Directive Principles of State Policy which enjoins the State to promote the educational and economic interests of the weaker sections of the people as provided under Article 46 of the Constitution. Thus, Article 15(6) and 16(6) has been formulated with an aim to eliminate discrimination on the basis of economic status, giving an opportunity to the section of people who are deprived of adequate representations in the educational institutions or jobs, hence striving towards equality and not challenging the basic structure.

JUDICIAL PRONOUNCEMENTS ON RESERVATIONS

There have been several decisions of the Supreme Court since 1951, which tried to analyze the criteria to be adopted for making reservations for the backward classes. In the case of State of Madras v. Champakam Dorairajan and Another,7 the Supreme Court for the first time had dealt with the issue of reservation. Pursuant to Supreme Court's judgment in this case the Parliament amended Article 15 and inserted Clause (4). The Supreme Court, in M.R. Balaji v. State of Mysore,8 has fixed a limit to reservations and held that the 50 percent ceiling limit ought not to be crossed for the purpose of reservations. Not considering 'caste' as the sole criterion or dominant test in determining social backwardness of groups or classes of citizens, but in fact considering economic backwardness as a contributing factor, the Supreme Court has further observed as follows: "Social backwardness is on the ultimate analysis the result of poverty, to a very large extent."

In the landmark judgment of Indra Sawhney v. Union of India,9 the Supreme Court has discarded economic backwardness as a criterion for reservations as follows: "Reservation of seats or posts solely on the basis of economic backwardness i.e., without regard to evidence of historical discrimination, as aforesaid, finds no justification in the Constitution." It has also excluded 'creamy layer' amongst the backward classes from the ambit of reservation. Regarding the capping of reservations, it has been held that: "Reservation in all cases must be confined to a minority of available posts or seats so as not to unduly sacrifice merits. The number of seats or posts reserved under Article 15 or Article 16 must at all times remain well below 50% of the total number of seats or posts." The judgment has however clarified that the expression "weaker sections" of the people under Article 46 is wider than the expression "backward class" and includes those who are socially, economically backward or rendered as weaker sections due to any natural calamity or physical handicap.

CONCLUSION

The framers of the Indian Constitution, at the time of drafting the Constitution had kept in mind the prevalent state of affairs that adversely affected the equality of the country. There were a large number of under-privileged sections of people who experienced social discrimination through centuries under the garb of caste system and the members of such so-called lower classes required an adequate representation in the society. Efforts had, thus, been made to bring these weaker sections at par with the other sections of the society through the policy of reservations, which is considered as a positive or protective discrimination implemented in the Constitution. With the changing times, caste no longer can be the sole criterion for detecting socially backward classes because some of them have achieved economic status, thereby finding a social standing as well. However, even today poverty still remains a barrier to attaining equality and there is a significant discrimination between the people of a different economic status. The Government has thus by means of economic reservations taken a step forward to eradicate this form of discrimination as a means to achieving equality in the nation.

Footnotes

1. Section 2 of The Constitution (One Hundred and Third Amendment) Act, 2019

2. Section 3 of The Constitution (One Hundred and Third Amendment) Act, 2019

3. AIR 1967 SC 1643

4. AIR 1973 SC 1461

5. Supra

6. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299

7. AIR 1951 SC 226

8. AIR 1963 SC 649

9. AIR 1993 SC 477

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