Parliament of India passed Constitution (One Hundred and Third Amendment) Act, 2019 which came into effect on 14 Jan 2019. Through this amendment, Parliament amended Article 15 and 16 of the Constitution of India by adding two new clauses viz., clause (6) to Article 15 with Explanation and clause (6) to Article 16; and thereby, the State has been empowered, to provide for a maximum of ten per cent reservation for “the economically weaker sections” of citizens other than “the Scheduled Castes”, “the Scheduled Tribes” and the non-creamy layer of “the Other Backward Classes”.
The amendment does not mandate but enables reservation for EWS and prescribes a ceiling limit of ten per cent.
Challenge to the Amendment
But the said amendment was challenged in Supreme Court, the challenge to the amendment were essentially on three-fold grounds:
First, that making of special provisions including reservation in education and employment on the basis of economic criteria is entirely impermissible and offends the basic structure of the Constitution;
Second, that in any case, exclusion of socially and educationally backward classes i.e., SCs, STs and non-creamy layer OBCs from the benefit of these special provisions for EWS is inexplicably discriminatory and destroys the basic structure of the Constitution; and
Third, that providing for ten per cent. additional reservation directly breaches the fifty per cent. ceiling of reservations already settled by the decisions of this Court and hence, results in unacceptable abrogation of the Equality Code which, again, destroys the basic structure of the Constitution.
Submission of the Parties
PROF. MADAN GOPAL SUBMITTED THAT,
- Article 38 of the Constitution which enjoins the State to secure and protect “a social order in which justice, social, economic and political shall inform the institutions of the national life”, stressed that it was to ensure this social justice and the ethos of the Constitution that special provisions were envisioned under Article 15(4) and reservations in employment were provided under Article 16(4).
- The people in the lowest strand of social hierarchy were ostracized and stigmatised from public life and were deprived of basic liberties and equality. It was to address these historical inequalities that, as a vehicle of positive discrimination, the socially oppressed sections were provided reservations.
Therefore, the idea of ensuring social equality and justice was a congenital feature of the Constitution shaping its basic structure.
- The amendment in question has introduced privileged sections of society as economically weaker who were never subjected to any discrimination, whether historically or otherwise; and were not backward, socially and educationally.
- The non obstante clause in Articles 15(6) and 16(6), while granting reservation to already privileged and adequately represented class of citizens, has vetoed the pre-requisite of being socially and educationally backward or inadequately represented, which was the kernel to philosophy of reservation.
The Constitution puts forth social ‘and’ educational backwardness and not social ‘or’ educational backwardness as a criterion to determine positive discrimination in favour of a class. This foundation of social justice for historically marginalised and disadvantaged people is completely obliterated by the amendment in question, which removes that criterion.
- The purpose of positive discrimination was to put an end to monopoly of certain classes and create an inclusive society so as to ensure equality of opportunity to the marginalised sections.
However, the amendment in question creates a perpetual monopoly by providing reservation to that section of population whose identification is imprecise and is based on their individual traits more so, when these classes have been enjoying and are still enjoying control over resources and public employment.
SENIOR ADVOCATE MEENAKSHI ARORA SUBMITTED THAT,
- Articles 14 to 17 of the Constitution are to ensure that those sections of society who have been kept out of any meaningful opportunity, participation in public life and decision making, on the grounds enumerated under Article 15(1), be uplifted through positive discrimination, giving flesh and blood to the Equality Code, and essentially enabling the substantive equality.
- The communities, whom the amendment in question aims to protect, are duly represented in all walks of life and hence, even from the angle of adequacy in representation, they are not eligible to avail benefit of reservation under Articles 15 and 16. And, as stated by Dr. B.R. Ambedkar, backwardness was designed as a qualifying phrase to ensure that the ‘exception does not eat the rule’.
- Economic status is transient in nature and would keep on changing unlike the status of backwardness, which is based on age-old caste practices and oppressions that are immutable. The newly protected class under the amendment in question lacks historic and continuing lack of adequate representation caused by structural or institutional barriers, so as to be eligible for positive discrimination.
- Further, the reservation is intended to be operative only until there is inadequacy in representation of those classes and not in perpetuity. However, the present amendment prescribes essentially no end to reservation as there would always be people poorer than others.
- Even if this Court were to accept poverty and income as valid criteria for the grant of reservation then too, the amendment to the extent of ‘other than the class mentioned in clause (4) [and (5)]’ should be severed from Articles 15(6) and 16(6) so as to include the poor of all classes without any exclusion or discrimination.
SENIOR ADVOCATE SANJAY PARIKH-
Extensively relying on Constitution assembly debates, the counsel submitted that,
- Assembly was of the clear opinion that the word ‘backward’ should precede ‘class of people’. Therefore, despite being aware of the rampant poverty in the country, the focus of reservations was predominantly on the social stigma attached to the group. Reservation in public employment was given because the framers wanted the backward classes to share State power and for that matter, they had to be provided equal opportunity.
- The Assembly intended to extend the benefits of affirmative action to only those socially and educationally backward groups who had been excluded from mainstream national life due to historic injustice, stigma and discrimination and thus, bringing in any other criteria, excluding the communities who have suffered such stigmatisation, would be a blatant violation of not only the Equality Code but also the very principles of democracy (sharing of power being necessary to sustain democracy), both of which form part of the basic structure of the Constitution.
- The criteria for ‘backwardness’ was always ‘social’ in nature and ‘economic’ backwardness was never accepted as the sole criteria. Placing reliance on the decision of this Court in Indra Sawhney, he has contended that by the majority of 8:1, it was held that economic criteria cannot be the sole basis to grant reservation under Article 16.
- Drawing attention to the theory of ‘Substantive Equality’ propounded by Prof. Sandra Fredman, the counsel has submitted that reservation solely on economic criteria would violate the principles of substantive equality ingrained in the Constitution, which was directed against identity-based historic marginalisation.
- The term “socially and educationally” backward has been employed in Article 15(4) and the expressions employed are not “socially or educationally” or “socially or economically”. The intention behind this was to protect those classes of population who have been historically disadvantaged by birth and not by loss of wealth or by accident.
- Under Article 340, the first Backward Classes Commission laid down 22 parameters for the identification of a backward class. The amendment in question does not have any such machinery employed within its ambit for the identification of population who would fall under the EWS category.
Relying upon the census report, he has submitted that the population who would fall under the EWS would be around five per cent., and providing ten per cent. of reservation for such a small population, more so to the forward class, is manifestly arbitrary and fraud on the Constitution. Further, this positive discrimination is taking away the rights from rest of the population.
- As per the grounds of discrimination in Article 15, the Constitution has provided a bridge for all the grounds but there, economic deprivation is not mentioned, which clarifies that it was not considered as a basis for discrimination.
- The amendment in question fails on all the anvils of Equality Code because, if poverty is the rationale behind it and it aims at providing jobs for the poor by way of reservation then, the amendment fails to address as to how the poverty of the forward class is different from that of the SCs, STs and OBCs. Hence, the amendment in question fails the twin test of rationality and nexus, and violates the basic structure of Constitution.
SENIOR COUNSEL, MR. SALMAN KHURSHID
Reservation formed a special part of affirmative action. It is within the larger affirmative action circle that reservation finds its place. Drawing analogy with countries like U.S.A., Israel and Germany, the counsel has submitted that indeed affirmative action can be an answer, but it is not the only answer. There are, therefore, many ways of addressing the issue of economic disadvantage other than reservation, as has been done by these countries.
MR. YADAV NARENDER SINGH SUBMITTED THAT,
- While referring to Sinho Commission Report, the counsel submitted that the report, on the basis of which the amendment was enacted, itself stated that economic criteria would not result in homogenous class.
- In the absence of quantifiable data, one could not create a class for which protective measures are to be taken. The said Report concluded that if poverty is kept as a base-line for reservation, then it should have in its ambit all, irrespective of their class, more so because the poor of SCs, STs and OBCs are worse-off than those of general category.
- The condition precedent for a protective clause is existence of discrimination. Hence, protective action for a class that is neither a homogenous class nor is discriminated against, is violative of the basic structure of the Constitution.
- The purpose of Articles 15(4) and 16(4) is to protect a ‘group’ and to counter the historical wrong/oppression done to them. Whereas, the amendment in question deals with situational deprivation, mainly economic criteria, and is intended to protect an individual. Purposes and entities of both the protections being different, inclusion of SCs, STs and OBCs in one cannot mean their exclusion from the other.
- The words “other than” in Articles 15(6) and 16(6) should be read as “in addition to”, thereby including SCs, STs and OBCs within them and furthering the basic structure.
DIYA KAPOOR SUBMITTED THAT,
Reservation is for participation and representation and cannot be used for poverty alleviation. Reservation in public employment is to reverse discrimination and to equalize representation. Providing government jobs cannot pave a way for economic upliftment whereas, other ways of providing subsidies etc., is a kind of affirmative action to eliminate poverty.
Indeed, poverty alleviation is a goal for the State to strive for as per Directive Principles of State Policy16 but, reservation is not a way to alleviate poverty, as is evident from the statistics that despite decades of reservation in favour of SCs, STs and OBCs, they are still poor.
Attorney General for India, Mr. K.K. Venugopal submitted that,
- 103rd Amendment does not violate the basic structure of the Constitution, rather fosters it. Second, the exclusion of those classes already covered under Articles 15(4) and 16(4) from the proposed reservation did not breach the Equality Code. Third, the fifty per cent. limit is not a sacrosanct rule. Lastly, the benefit to EWS with respect to admission in private aided or unaided educational institutions does not violate Article 14, as has been settled by this Court.
- Attorney General has placed reliance on the decision of this Court in M. Nagaraj, as to dynamic interpretation of the Constitution to strengthen its Preambular vision; and has submitted that Articles 38 and 46 along with Preamble to the Constitution enjoin a duty on the State to eliminate social, economic and political inequalities and to promote justice.
- Over the years, repeatedly recognised that it was desirable to use poverty as the only basis for affirmative action and that it is poverty or economic deprivation that results in social and educational backwardness.
- The exclusion of already covered classes does not violate Equality Code as the EWS among the SC, ST and OBC communities are already enjoying the benefit of affirmative action in their favour by way of reservations in educational institutions and public employment, seats in Legislature, etc., to attain an equal status – socially and educationally.
- The fifty per cent. cap as laid down in Indra Sawhney is for the classes covered under Articles 15(4), 15(5) and 16(4). Therefore, extending the benefit of ten per cent. to these classes would exceed the reservation made for them beyond fifty per cent. and that would be violative of Indra Sawhney.
Fifty per cent. rule could be breached in extraordinary situation, as held by Indra Sawhney; and is, therefore, not an inviolable rule or part of the basic structure of the Constitution.
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