Introduction
The Indian Constitution has always confined its reservation
policy to scheduled caste, scheduled tribes, other backward classes, and
socially and educationally backward classes until the 103rd Constitution
Amendment Act was introduced by the government to include economically weaker
sections of the society. The reservations to these categories are provided
under Article 15 and Article 16 of the Indian Constitution.
Recently, the constitutional validity of 10% reservation to economically weaker sections of society has been upheld by the Supreme Court. Hence, the present write-up shall be confined to the changes brought forth by the 103rd Constitutional Amendment Act and the analysis of the said pronounced judgment.
The 103rd Constitutional Amendment
Act, 2019
The said amendment empowers the state to make 10%
reservations based on economic criteria in educational institutions and public
employment. Clause (6) was added to Article 15 and Article 16 of the Indian
Constitution which provides for as follows:
Article 15(6) gives the power to the state to make special
provisions for the advancement of the economically weaker section of the
citizens and reservations in educational institutions. The said provision
includes educational institutions, which means both aided and unaided private
institutions, and excludes minority institutions covered under Article 30 of
the Indian Constitution.[i]
Article 16(6) also empowers the state to provide for
reservations in appointments (i.e reservations in public employment.[ii]
The above articles were amended to include the economically
weaker section of the society which did not benefit from or fall with the
vertical reservations provided to scheduled caste, scheduled tribes, other
backward classes, and socially and educationally backward classes.
Effect of the 103rd Constitutional
Amendment Act, 2019
In the case of Indra Sawhney v. Union of India, it was well established that the ceiling limit for reservation is limited to 50 percent. And, with the introduction of 10% reservation via the 103rd Constitutional Amendment; the ceiling limit in the Indra Sawhney case has been breached. Hence, it means that a 10% reservation to the economically weaker section is independent of the ceiling limit of 50%.
EWS Quota Judgment
In the case of Janhit Abhiyan v.
Union Of India with 32 connected matters, the Supreme Court bench by a 3:2
majority upheld the constitutional validity of the 103rd Constitutional
Amendment which introduced 10% reservation for Economically Weaker Sections
(EWS) in education and public employment. Justice Bela Trivedi, Justice Dinesh
Maheshwari, and Justice JB Pardiwala gave a majority opinion, while then CJI
U.U Lalit and Justice Ravindra Bhat gave a minority opinion.
Before reading the majority and minority opinions, it is
important to know the issues framed in the present case.
Issues
Whether the 103rd Constitution Amendment is violative of the basic structure of the Constitution by providing reservation on the economic criteria; by allowing the state to provide reservation in relation to admission to private unaided institutions; by excluding other reserved categories from the scope of EWS reservation; for breaching the 50% ceiling limit?
Majority Opinion
The majority opinion of the said amendment observed that the
103rd Constitutional amendment is not violative of the basic structure of the
constitution concerning all the above issues.
Justice Dinesh Maheshwari opined that reservation is an
affirmative action that is an exception to the rule of equity and the said
affirmative action cannot be treated as an essential feature of the constitution
that cannot be modulated. Hence, the inclusion of the SC/ST/OBC and SEBC with the EWS category will damage the basic
structure and not the exclusion of the said list from the present amendment.
Justice JB Pardiwala observed that “the
103rd Constitutional Amendment signifies the Parliament’s intention to expand
affirmative action to hitherto untouched groups – who suffer from similar
disadvantages as the OBCs competing for opportunities.” While Justice Bela
M. Trivedi opined: “the Scheduled Castes/Scheduled
Tribes and the backward class for whom the special provisions have already been
provided in Article 15(4), 15(5) and 16(4) form a separate category as
distinguished from the general or unreserved category. They cannot be treated
at par with the citizens belonging to the general or unreserved category.”
With regard to inclusion based on economic criteria, Justice Dinesh Maheshwari observed that the said
affirmative action is a goal to achieve an egalitarian society, and only
socially and educationally backward do not form part of society. An ought-to-be
society includes any class or section that is at disadvantage in society.
Hence, reservation on economic criteria is not violative of the basic structure
of the constitution. Also, while referring to various reservation cases such as
M. Nagraj v. Union of India, and Indra Sawhney v. Union of India it was
observed: “On a contextual reading, it
could reasonably be culled out that the observations, wherever occurring in the
decisions of this Court, to the effect that reservation cannot be availed only
on economic criteria, were to convey the principle that to avail the benefit of
this affirmative action under Articles 15(4) and/or 15(5) and/or 16(4), as the
case may be, the class concerned ought to be carrying some other disadvantage
too and not the economic disadvantage alone. The said decisions cannot be read
to mean that if any class or section other than those covered by Articles 15(4)
and/or 15(5) and/or 16(4) is suffering from disadvantage only due to economic
conditions, the State can never take affirmative action qua that class or
section.”
While Justice Bela M. Trivedi stressed the ideals imbibed by
the framers of the constitution to have an egalitarian, casteless and classless
society. And, the said economic reservation is embarking on the journey to a
careless society.
With regard to breaching of 50% ceiling, Justice Dinesh Maheshwari opined that a 10%
reservation to EWS categories with the existing 50% reservation is not
violative of the basic structure since the ceiling is not inflexible and it
applies to Article 15(4), Article 15(5) and Article 16(4) of the Indian
Constitution.
“This ceiling limit,
though held attached to the constitutional requirements, has not been held to
be inflexible and inviolable for all times to come.” While Justice Bela M.
Trivedi and Justice PB Pardiwala concurred with the said opinion.
About 10% of reservations in relation to admission to private unaided institutions,
Justice Dinesh Maheshwari and Justice PB Pardiwala relied on the judgment of
Pramati Educational and Cultural Trust (Registered) and Ors. v. Union of India
and Ors upheld the constitutionality validity of the 93rd constitutional
amendment that inserted Article 15(5) of the Indian Constitution and held that
the 103rd constitutional amendment is not violative of the basic structure by
empowering the state to make reservations in private unaided institutions.
“The State is under an
obligation to apply the provisions contained in Articles 45 and 46 to provide
childhood care and primary education and promote with special care the
educational and economic interests of the weaker sections of the people and
protect them from social injustice.”
Minority Opinion
The dissenting opinion in the present case was authored by
Justice S Ravindra Bhat, while (then) CJI U.U Lalit concurred with the opinion.
With regard to exclusion
of other reserved categories from the EWS quota, Justice S Ravindra Bhat
observed that granting reservation to the economically weaker section is not
impermissible, but exclusion of the backward classes is impermissible.
“By excluding a large
number of equally poor and destitute individuals based on social backwardness
on legally acknowledged class stigmatization, the amendment practices
constitutionally prohibited forms of discrimination.”
Further, it was observed that exclusion strikes at the heart
of the equality code.
With regard to the breach of the 50% ceiling limit, Justice Ravindra Bhat observed that the said
breach will lead to compartmentalization. He further opined that “The rule of equality would then be reduced
to the right of reservation, leading us back to the days of Champakam
Dorairajan. In this regard, the observations of Ambedkar have to be kept in
mind that reservations are to be seen as temporary and exceptional or they
could eat up the rule of equality.”
The dissenting judges did concur with the majority in two
aspects: reservation on the economic basis is permissible and states can make
special provisions for economically weaker sections for admissions in private
unaided institutions. As mentioned above, the Court observed that reservation
on economic criteria is permissible, but the exclusion of other categories from
the economic criteria is not.
“Special provisions
made on objective economic criteria is per se not violative. Reservation is
designed as a powerful tool to enable equal access and equal opportunities.
Introducing economic basis for reservations as a new category is permissible”
Lastly, the dissenting opinion observed that the 103rd of
the Constitutional Amendment is violative of the “essence of equal opportunity”
and is violative of the basic structure of the Indian Constitution.
Conclusion
The majority opinion of the judgment upholding the 103rd constitution amendment has opened the gateway for many states to make special provisions exceeding the 50% ceiling limit for instance the Jharkhand Govt brought forth a bill providing 77% reservation. Also, a review petition has been filed in the Supreme Court for the said judgment claiming that backward class cannot be determined based on the economic criteria and it is violative of the Indra Sawhney v. Union of India. Henceforth, it would be a keen wait to see the response of the Apex Court on the said review petition.
Arshnit Sandhu has completed her LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access our Recent Legal News Archives and our Blogs on legal updates from around the globe.
For daily legal updates, you may follow us on Instagram and LinkedIn and join our Telegram channel
[i] Article 15(6) of the Indian Constitution
[ii] Article 16(6) of the Indian Constitution
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Introduction
The Indian Constitution has always confined its reservation policy to scheduled caste, scheduled tribes, other backward classes, and socially and educationally backward classes until the 103rd Constitution Amendment Act was introduced by the government to include economically weaker sections of the society. The reservations to these categories are provided under Article 15 and Article 16 of the Indian Constitution.
Recently, the constitutional validity of 10% reservation to economically weaker sections of society has been upheld by the Supreme Court. Hence, the present write-up shall be confined to the changes brought forth by the 103rd Constitutional Amendment Act and the analysis of the said pronounced judgment.
The 103rd Constitutional Amendment Act, 2019
The said amendment empowers the state to make 10% reservations based on economic criteria in educational institutions and public employment. Clause (6) was added to Article 15 and Article 16 of the Indian Constitution which provides for as follows:
Article 15(6) gives the power to the state to make special provisions for the advancement of the economically weaker section of the citizens and reservations in educational institutions. The said provision includes educational institutions, which means both aided and unaided private institutions, and excludes minority institutions covered under Article 30 of the Indian Constitution.[i]
Article 16(6) also empowers the state to provide for reservations in appointments (i.e reservations in public employment.[ii]
The above articles were amended to include the economically weaker section of the society which did not benefit from or fall with the vertical reservations provided to scheduled caste, scheduled tribes, other backward classes, and socially and educationally backward classes.
Effect of the 103rd Constitutional Amendment Act, 2019
In the case of Indra Sawhney v. Union of India, it was well established that the ceiling limit for reservation is limited to 50 percent. And, with the introduction of 10% reservation via the 103rd Constitutional Amendment; the ceiling limit in the Indra Sawhney case has been breached. Hence, it means that a 10% reservation to the economically weaker section is independent of the ceiling limit of 50%.
Also Read: 100% Reservation under Constitutional Scheme
Also Read: The Legality of Reservation in the Private Sector
Also Read: Jharkhand Government Passes Bill providing 77% Reservation
EWS Quota Judgment
In the case of Janhit Abhiyan v. Union Of India with 32 connected matters, the Supreme Court bench by a 3:2 majority upheld the constitutional validity of the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment. Justice Bela Trivedi, Justice Dinesh Maheshwari, and Justice JB Pardiwala gave a majority opinion, while then CJI U.U Lalit and Justice Ravindra Bhat gave a minority opinion.
Before reading the majority and minority opinions, it is important to know the issues framed in the present case.
Issues
Whether the 103rd Constitution Amendment is violative of the basic structure of the Constitution by providing reservation on the economic criteria; by allowing the state to provide reservation in relation to admission to private unaided institutions; by excluding other reserved categories from the scope of EWS reservation; for breaching the 50% ceiling limit?
Majority Opinion
The majority opinion of the said amendment observed that the 103rd Constitutional amendment is not violative of the basic structure of the constitution concerning all the above issues.
Justice Dinesh Maheshwari opined that reservation is an affirmative action that is an exception to the rule of equity and the said affirmative action cannot be treated as an essential feature of the constitution that cannot be modulated. Hence, the inclusion of the SC/ST/OBC and SEBC with the EWS category will damage the basic structure and not the exclusion of the said list from the present amendment. Justice JB Pardiwala observed that “the 103rd Constitutional Amendment signifies the Parliament’s intention to expand affirmative action to hitherto untouched groups – who suffer from similar disadvantages as the OBCs competing for opportunities.” While Justice Bela M. Trivedi opined: “the Scheduled Castes/Scheduled Tribes and the backward class for whom the special provisions have already been provided in Article 15(4), 15(5) and 16(4) form a separate category as distinguished from the general or unreserved category. They cannot be treated at par with the citizens belonging to the general or unreserved category.”
With regard to inclusion based on economic criteria, Justice Dinesh Maheshwari observed that the said affirmative action is a goal to achieve an egalitarian society, and only socially and educationally backward do not form part of society. An ought-to-be society includes any class or section that is at disadvantage in society. Hence, reservation on economic criteria is not violative of the basic structure of the constitution. Also, while referring to various reservation cases such as M. Nagraj v. Union of India, and Indra Sawhney v. Union of India it was observed: “On a contextual reading, it could reasonably be culled out that the observations, wherever occurring in the decisions of this Court, to the effect that reservation cannot be availed only on economic criteria, were to convey the principle that to avail the benefit of this affirmative action under Articles 15(4) and/or 15(5) and/or 16(4), as the case may be, the class concerned ought to be carrying some other disadvantage too and not the economic disadvantage alone. The said decisions cannot be read to mean that if any class or section other than those covered by Articles 15(4) and/or 15(5) and/or 16(4) is suffering from disadvantage only due to economic conditions, the State can never take affirmative action qua that class or section.”
While Justice Bela M. Trivedi stressed the ideals imbibed by the framers of the constitution to have an egalitarian, casteless and classless society. And, the said economic reservation is embarking on the journey to a careless society.
With regard to breaching of 50% ceiling, Justice Dinesh Maheshwari opined that a 10% reservation to EWS categories with the existing 50% reservation is not violative of the basic structure since the ceiling is not inflexible and it applies to Article 15(4), Article 15(5) and Article 16(4) of the Indian Constitution.
“This ceiling limit, though held attached to the constitutional requirements, has not been held to be inflexible and inviolable for all times to come.” While Justice Bela M. Trivedi and Justice PB Pardiwala concurred with the said opinion.
About 10% of reservations in relation to admission to private unaided institutions, Justice Dinesh Maheshwari and Justice PB Pardiwala relied on the judgment of Pramati Educational and Cultural Trust (Registered) and Ors. v. Union of India and Ors upheld the constitutionality validity of the 93rd constitutional amendment that inserted Article 15(5) of the Indian Constitution and held that the 103rd constitutional amendment is not violative of the basic structure by empowering the state to make reservations in private unaided institutions.
“The State is under an obligation to apply the provisions contained in Articles 45 and 46 to provide childhood care and primary education and promote with special care the educational and economic interests of the weaker sections of the people and protect them from social injustice.”
Minority Opinion
The dissenting opinion in the present case was authored by Justice S Ravindra Bhat, while (then) CJI U.U Lalit concurred with the opinion.
With regard to exclusion of other reserved categories from the EWS quota, Justice S Ravindra Bhat observed that granting reservation to the economically weaker section is not impermissible, but exclusion of the backward classes is impermissible.
“By excluding a large number of equally poor and destitute individuals based on social backwardness on legally acknowledged class stigmatization, the amendment practices constitutionally prohibited forms of discrimination.”
Further, it was observed that exclusion strikes at the heart of the equality code.
With regard to the breach of the 50% ceiling limit, Justice Ravindra Bhat observed that the said breach will lead to compartmentalization. He further opined that “The rule of equality would then be reduced to the right of reservation, leading us back to the days of Champakam Dorairajan. In this regard, the observations of Ambedkar have to be kept in mind that reservations are to be seen as temporary and exceptional or they could eat up the rule of equality.”
The dissenting judges did concur with the majority in two aspects: reservation on the economic basis is permissible and states can make special provisions for economically weaker sections for admissions in private unaided institutions. As mentioned above, the Court observed that reservation on economic criteria is permissible, but the exclusion of other categories from the economic criteria is not.
“Special provisions made on objective economic criteria is per se not violative. Reservation is designed as a powerful tool to enable equal access and equal opportunities. Introducing economic basis for reservations as a new category is permissible”
Lastly, the dissenting opinion observed that the 103rd of the Constitutional Amendment is violative of the “essence of equal opportunity” and is violative of the basic structure of the Indian Constitution.
Conclusion
The majority opinion of the judgment upholding the 103rd constitution amendment has opened the gateway for many states to make special provisions exceeding the 50% ceiling limit for instance the Jharkhand Govt brought forth a bill providing 77% reservation. Also, a review petition has been filed in the Supreme Court for the said judgment claiming that backward class cannot be determined based on the economic criteria and it is violative of the Indra Sawhney v. Union of India. Henceforth, it would be a keen wait to see the response of the Apex Court on the said review petition.
Arshnit Sandhu has completed her LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access our Recent Legal News Archives and our Blogs on legal updates from around the globe.
For daily legal updates, you may follow us on Instagram and LinkedIn and join our Telegram channel
[i] Article 15(6) of the Indian Constitution
[ii] Article 16(6) of the Indian Constitution
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