The Supreme Court has recently upheld the 103rd amendment to the Constitution by a 3:2 majority ruling.
The amendment introduced a 10 percent reservation for the Economically Weaker Sections (EWS) in admissions to educational institutions and public employment.
This amendment added an economic aspect to the reservation criteria along with the already-used aspect of social backwardness.
The following brief aims to analyze the following aspects:
How the quota could cross the 50 per cent national cap on reservations set by the Supreme Court in 1992?
Whether it has changed the basic structure of the constitution?
Whether the amendment is violative of the basic structure for excluding the poor among the SC/ST/OBC categories from EWS Quota.
The original Constitution of India provided reservation only for quota in legislatures – that too only for 10 years until 1960 (article 334). Subsequent amendments to the constitution extended the period of reservation for quota in legislatures.
Gradually it has created a feeling of enmity among the people of the upper caste people against the caste-based reservation system, as they are getting fewer opportunities for jobs and admissions to educational institutions because of the continuation of reservation.
Reservation was designed to be self-eliminating, as there was a clear timeline of 10 years in the original constitution, and that reservation will be phased out.
Reservation is now leading to vested interest (a political tool to influence voters) and is having social and economic implications as well.
Present-day Reservation system:
The current system is indifferent to the level of social disadvantage of those who are not members of a quota category and assumes that the disadvantages of those within each category are the same.
The government must provide equality of status and opportunity in India.
Reservation is one of the tools against social oppression and injustice against certain classes. Otherwise known as affirmative action, reservation helps in uplifting backward classes.
However, reservation is just one of the methods for social upliftment. There are many other methods like providing scholarships, funds, coaching, and other welfare schemes.
The reservation is exploited by the rich class among the Dalits and doesn’t even reach the real beneficiary.
Purpose of reservation in India:
To rectify the historical injustice against the backward classes in India
To ensure that equal representation of the people belonging to all castes in the services under the state and center.
To provide an equal platform for everyone irrespective of their caste
To promote and advance the backward classes
The Verdict- Validity of Constitutional 103rd amendment:
The 103rd constitutional amendment cannot be said to breach the basic structure of the Constitution.
The EWS quota does not violate equality and the basic structure of the constitution. Reservation in addition to an existing reservation does not violate provisions of the Constitution.
The reservation is an instrument of affirmative action by the state for the inclusion of backward classes.
Basic structure can’t be breached by enabling the state to make provisions for education.
Reservation is instrumental not just for the inclusion of socially and economically backward classes into society but also for classes so disadvantaged.
Reservations for EWS do not violate the basic structure on account of the 50% ceiling limit fixed by the Mandal Commission because the ceiling limit is not inflexible.
50% rule formed by the Supreme Court in the Indira Sawhney judgment in 1992was “not inflexible”. Further, it had applied only to SC/ST/SEBC/OBC communities and not the general category.
The Scheduled Castes, Scheduled Tribes, and the backward class for whom the special provisions have already been provided in Articles 15(4), 15(5), and 16(4) form a separate category as distinguished from the general or unreserved category.
Reservations were designed as a powerful tool to enable equal access. Introduction of economic criteria and excluding SC (Scheduled Castes), ST (Scheduled Tribe), and OBC (Other Backward Classes), saying they had these pre-existing benefits is injustice.
The EWS quota may have a reparative mechanism to have a level playing field and the exclusion of SC, ST, and OBC discriminates against the equality code and violates the basic structure.
Permitting the breach of the 50% ceiling limit would become “a gateway for further infractions and result in compartmentalization (division into sections).
Economically Weaker Section (EWS) Quota:
The 10% EWS quota was introduced under the 103rd Constitution (Amendment) Act, 2019 by amending Articles 15 and 16.
It inserted Article 15 (6) and Article 16 (6).
It is for economic reservation in jobs and admissions in educational institutes for Economically Weaker Sections (EWS).
It was enacted to promote the welfare of the poor not covered by the 50% reservation policy for Scheduled Castes (SCs), Scheduled Tribes (STs), and Socially and Educationally Backward Classes (SEBC).
It enables both the Centre and the States to provide reservations to the EWS of society.
Significance of the step
Recognition of the Economic Backwards
Reduction of Caste-Based Discrimination
If one wants to add a new category of reservation, a few points need to be taken care of:
Evaluation of reservation given to date.
The idea of vested interest.
What are the challenges that we aren’t able to address in the issue of creamy layers
Will it be self-eliminating or lay a clear timeline?
Gradually moving out the beneficiaries who have taken benefit of the reservation.
Matrix-Based Reservation: Justices Gogoi and Nariman suggested a list of differently-weighted categories, ranging from income, family situation, disability, education level, etc., in addition to birth in a particular caste.
It would constitute a basis to draw up a matrix-based system to justify reservations.
Should India need a reservation now?
According to NCRB's latest data Crimes against SC/ST communities increase by 1.2 percent. We can say that the exploitation has not been stopped, and the feeling of alienation by the section of society still persists.
Yes, there is a section of people facing injustice and is under a shadow even today because they don’t have anyone to speak for them, the data should be rectified and we should check who needs the reservation.
We must look at the judicial acumen and the vision of the honourable judges with open eyes. It’s time that full stock of the situation must be taken. The 21st century is the age of knowledge and it is going to be the key driver for India to grow forward and merit is going to play a defining role in this process. Last but not the least, after decades of reservations, it makes a good case to assess how instrumental it has been in bringing social and economic change. Reservation is not the end but a means to achieve a larger goal of social upliftment.
What is 103rd Amendment Act?
Criteria for reservation
The annual income of the person should be less than 8 lakhs.
The person should have no less than 5 acres of farmland.
People who have a house but less than 1000 square feet in a town.
The 103 Constitution Amendment Act provides the Economically Weaker Sections (EWS), Other Backward Classes, Scheduled Castes, and Scheduled Tribes with a 10% reservation for-
admission to central government and private educational institutions
recruitment into central government jobs
Addition of new clause (6) in Articles 15 and 16.
Article 15(6) empowers states to make special provisions for the advancement of any EWS other than those mentioned and to make a special provision on their admission to educational institutions — including aided or unaided private — other than the minority educational institutions referred to in clause (1) of Article 30.
This is in addition to existing reservations and is subject to a maximum of 10 percent of the total seats in each category.
Article 16 (6) empowers the State to make any provision for reservation of appointments or posts in favour of any EWS other than classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of 10 percent of the posts in each category.
Constitutional Provisions Governing Reservation in India
Part XVI deals with the reservation of SC and ST in Central and State legislatures.
Articles 15(4) and 16(4) of the Constitution enabled the State and Central Governments to reserve seats in government services for the members of the SC and ST.
The Constitution was amended by the Constitution (77th Amendment) Act, 1995, and a new clause (4A) was inserted in Article 16 to enable the government to provide reservation in promotion.
Later, clause (4A) was modified by the Constitution (85th Amendment) Act, 2001 to provide consequential seniority to SC and ST candidates promoted by giving reservation.
Constitutional 81st Amendment Act, 2000 inserted Article 16 (4 B) which enables the state to fill the unfilled vacancies of a year that are reserved for SCs/STs in the succeeding year, thereby nullifying the ceiling of fifty percent reservation on the total number of vacancies of that year.
Article 330 and 332 provides for specific representation through the reservation of seats for SCs and STs in the Parliament and the State Legislative Assemblies respectively.
Article 243D provides reservation of seats for SCs and STs in every Panchayat.
Article 233T provides reservation of seats for SCs and STs in every Municipality.
Article 335 of the constitution says that the claims of STs and STs shall be taken into consideration consistently with the maintenance of efficacy of the administration.