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CHALLENGES OF THE CONSTITUTION (103RD AMENDMENT) ACT, 2019

INTRODUCTION

Reservation is also called a quota which means that certain quotas can be fixed for a particular category of people to ensure equality in society. India’s reservation system is an affirmative action that confers for those people who are being disadvantaged groups in society of India such as social, educational, economic and political. Similarly, the reservation policies have been made for the SC and ST but OBC was included in the ambit of the reservation after the recommendation of the Mandal Commission in 1993. However, the 103rd Constitution Amendment Act was passed by the parliament for conferring 10% reservation of economically weaker section (EWS) in public employment and public and private educational institutions seats in 2019.

On the other side, the question of reserving seats for the EWS that would reach against the doctrine of the basic structure of the constitution which violate the fundamental right provided by Article 14 of the Indian Constitution because the primary object of enacting such an Amendment Act was to accomplish equality assured under Article 14 of the Constitution and the problem raised that the bill was exceeded 50% maximum limit of reservation which held in Indra Sawhney vs Union of India[1] by Hon’ble Supreme Court. This paper aims to evaluate the perspective of the Amendment Act and its challenges posed in our society.

EWS RESERVATION ELIGIBILITY CRITERIA

  • People eligible in this reservation 10% quota who are not coated under the scheme of reservation policies such as SCs, STs and OBCs and those people families who have an entire yearly income below Rupees eight lakh would be specified as EWSs for the privilege of reservation.
  • This 10% EWS reservation quota would merely comprise the General section candidates because other sections candidates already have reservation advantages such as OBC (27%), SC (15%), and ST (7.5%) in India.
  • There must be categorised under EWS if the family does not possess or own farming property of length five acres or above and residential area of a falt would not exceed 1000 square feet.
  • In different areas or different cities, the estate kept of a Family will be collaborated while comparing the land or property-carrying test to specify the EWS status of the family. The term Family for this concern would comprise the person who wants the advantage of reservation for his/her parents and his/her spouse and kids below the age of 18 years then the state would confer the reservation standard as per counting upon the regional aspects. The relevancy of this reservation is for both employment under the public sector as well as for educational institutions seats hence higher study in University.

CHALLENGES

This Constitution (103rd Amendment) Act, 2019 was not a unique indication because in Indra Sawhney v. Union of India case the Hon’ble Court was conferred for up to 10% reservation EWS of the society who does not come under the reserved section in Articles 15 and 16 of the Constitution.[2] The Court has cancelled the petitioner’s assertion and the bench held that an individual would not be excluded from the appreciation of appointment under government services merely based upon their salary or land holding because an occupation under the government is implied to perform for the population and it is an auxiliary deliberation that job under the government also fulfils as a conception of livelihood for those who are nominated in the state office posts. However, as per the court, any obstacle developed based on the financial stature of an individual at once abridges Article 16 (1) of the Indian Constitution.[3] The statement was provided in Indra Sawhney also discovers corroboration from the eminent jurists of India. Even though, some jurists agree with distributive or representative justice exists as a principle of equality and would be achieved by Article 14 of the Indian Constitution itself and reservation do not ensure distributive righteousness. However, the recommendation is also a rigid standpoint of law given prominence to the Hon’ble Supreme Court of India in numerous cases.

The additional constitutional exception that originates from this Amendment Act is that the new clauses inserted in Articles 15 and 16 are not understandable with the quiet provisions of Articles 15 and 16[4] and this issue was proclaimed which was conferred by Ambedkar during the debate of Constituent Assembly. As he cited with the affiliation of the term ‘backwards’ ought to be harmony which crashed between the early two clauses of Articles 15 and last clause of Article16. It may be said that the right to non-discrimination and the right to equal opportunity in public employment would be neutralized with the right to medication as an equal. Other questions were raised concerning the essence of the connection between the Articles 15 and 16 clauses. Hence, Articles 15(4) and 16(4) exceptions in the fundamental rights ensured by clauses (1) and (2) of Articles 15 and 16 stayed an issue of controversy till the Supreme Court laid down contrarily in N.M. Thomas. However, it was promoted in Indra Sawhney’s case by the court that Article 16(4) is an element of equality ensured in Article 16(1) and Article 16(4) does not abridge the clause (1) of the Article. Moreover, it gives constructive support and subjects to Article 16(1). Lastly, the reservation is merely for a financial reason then it would violate Article 16(1) of the constitution which has been disclosed by Indra Sawhney’s case. Hence, the only modification of invalidated public employment into a Constitutional Amendment would not remedy the dispute established between Article 16 clause (1) and Article 16 clause (6) of the Indian Constitution and the fundamental of the Constitution (103rd Amendment) Act, 2019 was questioned before the Hon’ble Supreme Court.

CONCLUSION

The main purpose of reservation policy is to confer a privilege to underprivileged classes like SC, ST, OBC and EWS for better opportunities, enhancing the social and economical status. However, this concept was developed in India since independent a democratic nation and various sections of the society grew dissatisfied with their conditions, preferred more freedom and privileges for progressing. In India, all the profession arrives into the reservation category from teachers to politicians and students to employees. However, the reservation system confers the castes over their intelligence and hard work and this leads to the creation of undesirable bureaucrats, engineers, doctors and other professionals but the question arises when it provides the backward classes to improve their lives and status in society, therefore, they get meaningful employment and helping to remove their social and financial differences and to take a step to make a balanced society then it would be recognised as a great innovation idea.

Author(s) Name: Subhajit Samanta (Bikash Bharati Law College, University of Calcutta)

References:

[1] Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217

[2] B.K. Pavithra v. Union of India, (2019) 16 SCC 129

[3] Supra Note 1

[4] Constitution of India, 1950, art. 15 & 16.