On January 9, 2019, the Indian Parliament passed the Constitutional (103rd Amendment) Act, 2019. This amendment gave powers to the state to enable and exercise its powers to extend reservations to citizens on the basis of economic criteria in higher education and public jobs. Articles 15(6) and 16(6) were added to
the Constitution via this amendment.
Article 15(6) empowers the state to establish exceptional measures for the progress of any economically disadvantaged citizen, which entails reservations in educational institutions. It stipulates that such restrictions can be granted in any educational institution, including aided and unaided private colleges, with the exception of minority educational institutions, which are protected by Article 30(1). Article 16(6) gives power to the state to provide reservations in matters related to public appointments. In addition to the current reservation system, these provisions will be subject to a 10 per cent cap.
Why are these reservations contended in court?
The Government of India classifies the Economically Weaker Section (EWS) as persons who are not covered under the scheme of reservation for SCs, STs, and OBCs and whose family has a gross annual income below Rs 8 lakh, for the benefit of reservation. Income shall also include income from all sources for the financial year prior to the year of application. Persons with some assets in the form of land as specified by the government are also excluded from EWS.
A bunch of petitions went up questioning the validity of the amendment. These petitions contend that EWS reservations violate the basic structure of the Constitution and infringe on the fundamental right to equality enshrined under Article 14. In Janhit Abhiyan v Union of India (EWS reservation case), which is currently being heard by a Constitution Bench of the Supreme Court, the petitioners argue on some very important points referring to Indira Sawhney’s judgement of the Supreme Court. Putting in reference to Indira Sawhney and the right to equality under Article 14, the amendment fails to stand on, (a) the judgement observed that reservation cannot be only focused on the economical status of an individual, (b) the said amendment breaks the upper cap of 50 per cent ceiling limit in reservations, (c) excluding SEBCs and SC/STs from economic reservation violates the right to equality, and (d) state cannot impose the institutions that are not funded/aided by the state to enact EWS reservation.
In the Indira Sawhney case, a nine-judge bench sat to deliberate on the issue of reservation. They stated that reservation being an extreme form of protective measure or affirmative action should be confined to a minority of seats.
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Even though the Constitution does not lay down any specific bar, the constitutional philosophy being against proportional equality, the principle of balancing equality ordains reservation, of any manner, not to exceed 50 per cent. Observing this, the top court laid down a ceiling limit that in any circumstances or in any situation, there shall be
no reservation crossing the 50 per cent mark.
In two very important cases — Nagaraj v Union of India and Jayshri Laxmanrao Patil v Chief Minister — the apex court reinstated that the 50 per cent ceiling limit mentioned in the Indira Sawhney judgement has constitutional recognition and any reservation crossing the ceiling mark shall be unconstitutional.
The amendment Act also fails to satisfy the basic structure doctrine and the principles of social justice. The word ‘basic structure’ is not used in the Constitution, it is a judicially evolved principle. The basic structure doctrine aids in the protection and preservation of the spirit of the Constitution. The reservation in the Constitution was for backward groups, but EWS limits the reservation’s privileges to just forward classes. Thus, while giving reservations on the basis of economic criteria, the amendment fails to respect the theory of social justice.
If the amendment aims to uplift the economically weaker sections of society by providing them with reservations, then it should not be limited just to the upper class neglecting the historically oppressed sections of society. Reservation in the Indian Constitution was aimed to be a tool of representation for the sections of the society which have been neglected since the start.
Reservation aims to fulfill the pledge of social justice which is enshrined in the preamble. The aim of the reservation is not to uplift the EWS but to uplift the socially backward. Reservation is a constitutional framework designed to guarantee the backward classes participate in the nation-building process. It was established to guarantee that the underprivileged were represented. The EWS quota is a perversion of the constitutional framework of reservation.
(The writer is a student of law based in Delhi)