India: Economic Reservations: A Constitutional Challenge


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 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


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).


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.


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.


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.


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.


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

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions