He 103rd Constitution Amendment Act introducing special measures and
reservations for ‘economically weaker sections’ (EWS) has been viewed as clearly
unconstitutional. This article is sceptical of such a reading and believes that
a constitutional challenge to the amendment will lead us into uncharted
constitutional territory. The most serious constitutional challenge may not be
to the amendment itself, but to how governments enact it.
There is no genuine
possibility to a future challenge, and we will be wise to begin recognizing the
key constitutional issues that arise. To be sure, I am only concerned with
constitutional law issues in this context. In defending its decision to
implement a 10% economic quota, the Centre told the Supreme Court that the
amendments did not breach the Constitution's basic structure or the apex court's
1992 ruling in the Indra Sawhney case
, and that the 50% reservation limit:
only applicable to reservations made under Article 15(4), 15(5), and 16(4) and
does not apply to Article 15(6).
According to the study, the Sinho Commission
had concluded, on the basis of NSSO (National Sample Survey Office) Estimates,
that BPL percentage was not only high among STs, SCs, and OBCs, but also high
among the General group, being 18.2 percent.
The commission recommended in its
report dated July 2, 2010, that:
All BPL (Below Poverty Line) families among the
general category as notified from time to time, as well as all families whose
annual family income from all sources is below the taxable limit (as may be
revised from time to time) should be classified as EBCs.
According to the NSSO
(2004-05) and NFHS (National Family Health Survey) data (1998-99), there is a
need to make arrangements equivalent to the backward classes for the
economically weaker sections, the affidavit continued.
Youth for Equality has filed a petition on this basis, and senior advocate Indra
, whose petition resulted in the landmark Mandal judgment capping
reservations at 50%, is considering a challenge to the amendment on the basis of
basic structure doctrine.
What is the basic structure?
The court did not describe this and only mentioned a few values — federalism,
secularism, and democracy — as being part of the fundamental framework. Since
then, the court has been incorporating new elements into the basic structure
concept. In the years since, courts have expanded the doctrine to include
ordinary law and executive orders. The President's dismissal of BJP governments
following the demolition of the Babri Masjid was upheld in S R Bommai (1994),
with the Supreme Court citing these governments as a challenge to secularism.
The doctrine of basic structure is not part of the Constitution's text, and some
experts consider it undemocratic because unelected judges can overturn a
constitutional amendment. However, the same can be said for judicial review. The
basic structure doctrine, like judicial review, acts as a check against majoritarianism and authoritarianism; it protects citizens' liberty and upholds
the principles upon which the Constitution is founded.
As a result, while this
may not be part of the text of any particular article of the Constitution, it
may be part of the basic framework. For example, the term "federalism" is not
stated in the text but has been consistently used within the basic framework.
Similarly, the term "secularism" was not used in the text until 1976, although
it was included in the basic form in 1973.
Does basic structure talks about reservation?
Reservation was discussed in the form of social backwardness of classes, from
the Poona Pact (1932) between M K Gandhi and Dr B R Ambedkar to the Constituent
Assembly debates. The 124th Amendment deviates from the standard by granting
reservation to the economically deprived. Article 15(4), added in 1951 by the
First Amendment, Article 16(4) allows the state to make special arrangements for
socially and educationally backward classes; Article 16(4) allows reservation
for any backward class if it is not sufficiently represented in state services.
Thus, reservation is not a right, but if granted, it is a privilege.
not be deemed a breach of the equality right. Article 17 abolishes untouchability; therefore, reservation may be justified where there is an aspect
of social exclusion of a class. Article 46, a non-justiciable Directive
Principle, states that the state must promote the educational and economic
interests of "weaker sections," especially SCs and STs, and protect them from
"social injustices" and "all types of exploitation." Although the 124th
Amendment makes reference to Article 46 in its declaration and objections, The
government seems to have ignored the fact that upper castes are not subjected to
social inequality or exploitation.
Furthermore, the Constitution establishes commissions to investigate issues
relating to the enforcement of constitutional protections for Scheduled Castes
(Article 338), Scheduled Tribes (338A), and Socially and Educationally Backward
Classes (339), but no commission for economically backward classes is created.
Article 335 states the arguments of SCs/STs will be considered. In making
appointments to programmes and positions, appointments must be made in
accordance with the administration's commitment to productivity.
How to decide the compatibility of amendment with constitution and basic
To decide this, the Supreme Court must analyse the concepts behind affirmative
action. According to M Nagraj (2006), it will have to use two exams. The first
is the width measure, which is applied to the limits of the amending force.
This will include looking at four issues:
- quantitative constraints, such as exceeding the 50 percent cap on all
reservations taken together
- creamy layer exclusion or qualitative exclusion;
- persuasive factors, such as the economically weaker parts for which this
reservation has been made;
- that the new reservation does not obliterate overall
The second test is known as the
identification test, and it requires the Supreme Court to determine if the
identity of the Constitution has changed as a result of the amendment. This
cannot be changed by the amendment. In India, equality has long been regarded as
the very essence of democracy and the rule of law. Although equality allows for
logical classifications, they must be based on intelligible differentia, have
rational goals, and are not fanciful or arbitrary.
In this case, the court would analyse the Constitution's equality code and whether the state has considered
and valued the circumstances justifying the reservation. This would necessitate
a logical and non-arbitrary decision by the state. To satisfy the court about
the inadequacy of representation of economically disadvantaged groups, the state
must provide quantifiable data.
The Constitution makes it clear that reservations may be for a caste or a class.
In fact, caste is a social class that cannot be for individuals; however, the
most recent move has made it so. Similarly, the government must have
for exceeding the 50 percent cap. Upper castes are
underrepresented in some states, and this scheme may be difficult to justify
given that there is only 27 percent OBC reservation for 52 percent of the
Even for SC/ST reservation in promotion, the court in Jarnail Singh (2018)
relaxed only the requirement of collecting quantifiable data on backwardness but
insisted on the other two constraints. Inadequacy of representation and
performance are not jeopardised. The amendment may pass the test if the Supreme
Court rules that ignoring past injustices and social backwardness are not part
of the fundamental framework of equality and affirmative action under it.
So who are backward class according to our constitution.
Before a caste is considered backward, its social, educational, and economic
conditions must be thoroughly empirically assessed. For example, the Mandal
Commission examined 405 of 406 districts and devised 11 yardsticks to assess
social, educational, and economic backwardness, with social backwardness
receiving three points, educational backwardness receiving two, and economic
backwardness receiving one point.
If a party scored 11 out of a possible 22 points, it was classified as a
backward caste. Without comparable empirical evidence, the castes defined by the
Mandal Commission as "advanced castes" cannot now be labelled "backward
classes." Otherwise, it would be regarded as arbitrary.
Although the constitutional amendment will pass the ‘basic structure' test on
its own, the most difficult test for governments would be how they implement the
amendment. The idea of ‘economically poorer sections' will be a major challenge
because the political inclination will be to be as vague as possible in order to
reach as many people as possible. However, the wider the meaning, the greater
the constitutional danger.
For example, if beneficiaries are identified as all those with a family income
of less than Rs. 8 lakh per annum, it must fail constitutional scrutiny. To
justify that a person ‘below the poverty line' and another with an annual family
income of Rs. 8 lakh belong to the same community for the purposes of
affirmative action would require unparalleled constitutional juggling. But,
again, our constitutional jurisprudence has a long history of preparing us for