Recently, Supreme Court gave a judgment on the constitutionality of the 103rd amendment bill and whether it is violating the basic structure doctrine laid down in the 9-judge bench case of Keshvanada Bharati vs. Union of India. The Judgement was delivered by 5 Judge Bench in which Justice Dinesh Maheshwari, Justice Bela M Triveda, and Justice JB Pardiwala uphold the validity of the EWS Quota while Justice Ravindra Bhat and CJI UU Lalit delivered the dissenting verdict.
WHAT IS 103rd CONSTITUTIONAL AMENDMENT ACT?
The One Hundred and Third Amendment act (2019) was passed by the Indian Parliament on January 9th, giving the State the power to make reservations in higher education and public employment solely based on economic criteria. The Act included 15(6) and 16(6) into Articles 15 and 16 of the Constitution.
The Amendment under Article 15(6) allows the State to implement extraordinary measures, such as reservations in educational institutions, for the advancement of any economically underprivileged group of citizens. Any educational institution, including both aided and unaided private colleges, is allowed to make these adjustments, with the exception of minority educational institutions regulated by Article 30(1). Article 16(6) enables the State to make provisions for reservation in appointments. Again, these provisions will be subject to a 10% ceiling, in addition to the existing reservations. More than 20 petitions were filed in the Supreme Court against this 103rd Constitutional Amendment Act, 2019.
ISSUES RAISED BEFORE THE BENCH WERE:
- Can Reservations be made solely based on Economic Criteria?
- Can State provide Reservations in private educational institutions that don’t receive government funding?
- Do Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Socially and Economically Backward Classes fall beyond the purview of EWS reservations, rendering the amendment unconstitutional?
WHAT WERE THE CONTENTIONS OF THE PETITIONER :
ECONOMIC CRITERIA CAN NOT BE THE SOLE BASIS OF PROVIDING RESERVATION:
103rd Amendment Act directly contradicts the ruling in Indira Sawhney v. Union of India which states that economic criteria alone cannot be used to identify backwardness and there should be a 50% ceiling limit on the reservation which can only be changed in the case of extraordinary circumstances. As there are not any Extraordinary circumstances in the present case so, the 50% ceiling limit should not be breached. It also propounded in the case of M R Balaji vs the State of Mysore.
103rd AMENDMENT IS AGAINST THE CODE OF EQUALITY:
The Equality Code is a Basic Structure of the Indian Constitution, as stated in the rulings in State of Madras v. Champakam Dorairajan, M. R. Balaji and Others v. State of Mysore, and Jaishree Patil v. Chief Minister. As the 124th Amendment Bill gives upper castes reservations, this is a blatant breach of Article 14 of the Indian Constitution Right to equality. This amendment also breaches the “width test” and “identity test” established in the case of Nagaraj v. Union of India because there is no definition of EWS listed in Article 15(6), leaving it entirely up to the state to decide who would be EWS and that too from time to time. Reservation is provided for all castes who are educationally and socially backward under Articles 15(4) and 15(5). But the 103rd Amendments act newly added Article 15(6) makes it clear that it is just for people who are not covered under the SC/ST and SEBC reservations. By excluding SCs and STs from its purview, it is also violating the principle of Article 46.
THE UPPER LIMIT IS ARBITRARY:
The upper limit for the EWS reservation is eight lakhs which means the average monthly salary should be 66000. If we rely on the statistics it shows that about 96% of Indian families earn below Rs. 25,000. This ceiling was deemed reasonable by a government-appointed committee, although it was unable to fully explain why the income requirement was “more stringent” than the one for the OBC creamy layer. Additionally, the 8 lakh figure did not match any information on the anticipated population of EWS individuals with associated incomes.
THE WORD “IN ADDITION TO THE EXISTING RESERVATION” IS INCONSISTENT?
The phrase “in addition to the existing reservation” is against Articles 15(6) and 16(6) of the Constitution. Firstly, It converts an enabling provision into an enabled provision that is impermissible. Secondly, giving a 10% limit to which you can go, in addition to the existing reservations, beyond 50%, is a violation that cannot be in any way permitted. This amendment violates the constitution by converting Articles 15(4) and 15(5) into enabled provisions.
CONTENTIONS OF THE RESPONDENT:
VIOLATION OF THE PRINCIPLE OF DEMOCRACY:
The vision of the Constitution makers is based on the equality of opportunity. The criteria used to determine social backwardness is determined as per the violation they have suffered in the past. The objective was to bring them into the spotlight and share state power and provide them enough representation to the underprivileged. Therefore, the 103rd Amendment Act not only violates the equality law but also the fundamental principle of the constitution i.e democracy. Targeting those who experienced historical injustice was the basis of reservation. Any additional requirements are a violation of the democratic system and the equality code.
IT IS AN EXAMPLE OF AFFIRMATIVE ACTION, DISADVANTAGED GROUPS DO NOT NEED ANY EXTRA BENEFITS:
The state has provided lots of benefits to the SCs and STs, they didn’t require any extra benefits.
RESERVATION WON’T BE ADDED TO THE 50 %CEILING LIMIT:
50% was the maximum limit of reservation for the three backward groups, and 10% of the non-reserved category was now allocated to the economically disadvantaged sectors. The implementation of the EWS quota would not have an impact on the lower classes because reservations would not reduce the 50% that was already allocated to them.
THE 50% CEILING LIMIT CAN BE CROSSED IN THE CASE OF EXCEPTIONAL CIRCUMSTANCES:
The 50% ceiling limit is not permanent and may be exceeded in exceptional circumstances. Thus, the 50% ceiling limit could not be elevated to the level of basic structure.
Justices Dinesh Maheshwari, Bela M. Trivedi, and J.B. Pardiwala ruled that the 103rd Amendment is valid and did not violate the equality code or the Constitution’s fundamental principles. The minority on the panel, which included Chief Justice of India Uday Umesh Lalit and Justice S Ravindra Bhat, deemed the EWS quota provision to be discriminatory and exclusionary. For himself and the Chief Justice of India, Justice Bhat wrote the dissenting opinion.
Justice Maheshwari relied on the judgments of-
- Keshvananda Bharati vs State of Kerela in which it is held that the “welfare state be one of the main objectives of the Constitution”.
- Chitralekha And Anr. v. State of Mysore And Ors., “where the definition of ‘backwardness’ acknowledged by the Apex Court was devoid of any caste consideration, but included criteria like occupation, income, and other economic factors”.
- Janki Prasad Parimoo And Ors. v. State of J&K And Ors.were also relied upon, “wherein the Apex Court had noted that India’s social and educational backwardness is associated with economic backwardness”.
According to Justice Bela M. Trivedi, considering citizens who are economically weaker as a separate class would be a legitimate classification in terms of the objectives of substantive equality. The rights provided to the EWS sections by 103rd Amendment Act is not affecting the special rights given to the SC’s STs and SEBCs.
According to Justice Pardiwala,
Reservation shouldn’t continue for an indefinite amount of time. The new economic criteria for affirmative action brought in by the 103rd Amendment may significantly help remove caste-based reservations. “It may be perceived as a first step in the process of doing away with caste-based reservation.” He further said that the word used in Article 46 of the Indian Constitution “ Weaker Sections” doesn’t only refer to SC’s STs and SEBCs. Justice Ravindra Bhat and Chief Justice UU Lalit gave a dissenting opinion. According to Justice Ravindra Bhat, He said that while economic-based reservations are acceptable, removing SC/STs and OBCs from the EWS quota is not acceptable and constitutes discrimination against those groups. He said that it “deluding us to believe that those getting social and backward class benefit is somehow better placed.” He also emphasized the Sinho Commission report, which showed that a significant portion of the SC/ST population (48% of STs and 38% of all STs) live in poverty and these areas make up a large portion of the economically disadvantaged people. Regarding Article 16 of the Constitution, he holds a different opinion. Justice Bhat points out that “appropriate representation” is the basis for the reservation made under Article 16(4). Since the reservation for the economically vulnerable sectors is not due to a lack of representation, it is ineligible for consideration under Article 16. Giving reservations to a group of people who are not socially backward and whose community is represented in public employment would be against the Preamble and Article 16 of the Constitution.
For “an egalitarian, casteless, and classless society” reservation should not be continued for an indefinite period of time. It is necessary to review the reservation system in the interest of the entire society and as a step towards transformational constitutionalism. “What was intended by the Constitution’s framers, what the Constitution bench proposed in 1985, and what was sought to be accomplished on the completion of 50 years since the Constitution’s inception—that is, the policy of reservation must have a time span—has still not been achieved even to this day, that is, until the completion of 75 years since our independence. Also as according to Justice Pardiwala EWS Reservation is the step forward to achieve this goal.
Author(s) Name: Harshpreet Kaur (Rajiv Gandhi National University of Law, Punjab)