"What brought about the abolition of slavery? Was it safeguards granted to them
by anyone? No, it was the awakened conscience of the various countries".- Sardar
Reservation is one of the most conflicted topics in India because people with
different beliefs, faiths and values co-exist. The purpose of this article is to
analyze the Constitution 103rd Amendment Act, 2019.
The problems and legal hurdles have been analytically observed. The possible
remedies and solutions have been stated following the future consequences of
meretricious political appeasement.
The system of reservation in India comprises a series of affirmative action
measures, taken up by the government to uplift the weaker sections of the
society by getting them into government jobs and higher educational
institutions. A distinctive system which was conceived as a temporary measure to
bring all the community on one stand. With the passage of time, this concept has
become highly critical due to appeasement politics inherent in the country
The Constitution (One Hundred and Twenty Fourth Amendment) Bill, 2019 was
introduced by the Minister of Social Justice and Empowerment, Mr. TC Gehlot. The
bill was passed by both the houses of Parliament and thereafter receiving the
assent of the President, The Constitution (One Hundered and Third Amendment)
Act, 2019 came into execution. The Act provides for 10% reservation for EWS in
public employment and private educational institutions.
As per the Ministry for Social Justice -'Brahmins, Banias, Muslims & Christians
all will be eligible for this quota in jobs and education'. It mainly extends to
economically backward people of the unreserved category. It does not validate to
citizens who are availing the benefit of any other kind of reservation. Also,
the Constitutional Amendment states, it applies only to initial appointments and
not to promotions.
Following is the eligibility criteria set by the government:
- 10% reservation to the economically backward sections in general category
- General Category all members of whose family together earn less than Rs.8 lakh per annum, and who have less than five acres of agricultural land, will qualify.
- Individuals whose families own or posses more agricultural land, or residential flat or area of 1000 sq. ft or larger or a residential plot of area 100 yards or more in notified municipalities and 200 yards or more in areas other than notified municipalities, will not qualify.
- It covers those from Muslim, Sikhs, Christian, Buddhist and other minority communities.
- The quota will be over and above the existing 50% reservation to the SC ST and OBC.
New Clauses To Article 15 And Article 16
Article 15 (Prohibition of Discrimination) and Article 16 (equality of
opportunity) has been amended. Article 15(4) empowers the state to make any
provision for the advancement of any socially and educationally backward classes
of citizens for the SC and ST tribe.
Article 16(4) provides for the reservation of appointments of posts in favor of
any backward class of citizens, which in opinion of the State, is not adequately
represented in the services under the state. The term backward class of citizens
has been generally understood to include the SCs and STs and Socially
Educationally Backward Castes (SEdBCs)
- The new clause (6) to Article 16 allows the government to carve
reservation for the economically weaker sections of the society in higher
educational institutions, including private ones, whether they are added or
not by the State. Minority educational institutions are exempted.
- Likewise , the new clause (6) to Article 16 provides for quota for
economically deprived sections in the initial appointment in government
Initiatives in this Area: Economically Backwardness:
- Article 340 & Article 46 of the Constitution
- Article 340 mandated that the government identifies 'classes' which were
socially and educationally backward and implement measures to remove such
difficulties so as to improve their conditions.
- Also, Article 340(1) provided for the appointment of a Commission to
investigate the condition of backward classes.
- Article 46 of the Constitution, a Directive Principle of State Policy
urges the government to protect the educational and economic interests of
the weaker sections of the society.
- Kalekar and Mandal committee
The first backward class committee was appointed under Article 340(1) in 1953
under the Chairmanship of Kaka Saheb Kalekar. The commission was set up to
determine the criteria to identify people as socially and educationally backward
classes, and to recommend steps to improve their conditions. In its report, he
commission interpreted the term "socially and educationally backward classes as
relating primarily to social hierarchy based on caste"
Second backward committee was appointed in 1978 under BP Mandal to review the
state of backward classes. This report recommended 27.5% reservation in
government jobs for OBCs stirring a hornet's nest in North Indian Politics, with
ramifications that continue to be felt today.
Currently, the Supreme Court has put an upper limit of 50% on quota limit. The
10 per cent reservation for economically weaker upper castes will be over and
above the existing 50 per cent reservation. Any reservation beyond the 50% limit
would have required the government to get a constitutional amendment passed in
Parliament. Hence, articles 15 and 16 of the
Constitution are amended for implementation of the decision
- Economic criteria cannot be the sole basis for reservation Indira Sahney Case
A nine judge bench in the case of Indira Sahney v. Union of India  had struck
down a provision that embarked for 10% reservation for the economic reservation
for the economically backward on the ground those economic criteria cannot be
the sole basis to determine backwardness. Any attempt to amend the constitution
to extend what is limited to the socially and educationally backward to those
economically weak is problematic.
The majority holds in para 799:
"It follows from the discussion under Question No. 3 that a backward class
cannot be determined only and exclusively with reference to economic criterion.
It may be a consideration or basis along with and in addition to social
backwardness, but it can never be the sole criterion. This is the view uniformly
taken by this Court and we respectfully agree with the same."
Such an Amendment is hence, vulnerable and ought to be struck down as it merely
negates a binding judgment.
- The economic reservation cannot be limited to the general categories
continually; this Hon'ble Court has upheld the quality code as one of the
primary basic features of the Constitution. In some landmark cases like Maneka
Gandhiv. Union of India ; I.R.Coelho v. State of Tamil Nadu  and
ShayaraBano and others v. Union of India , the value of equality has been
repeatedly emphasized to ensure that equals are not treated unequally.
By way of the present amendments, the exclusion of the OBCs and theSCs/STs from
the scope of the economic reservation essentially implies that only those who
are poor from the general categories would avail the benefits of the quotas.
Taken together with the fact that the high creamy layer limit of Rs.8 lakh per
annum ensures that the elite in the OBCs and SCs/STs capture the reservation
benefits repeatedly, the poor
sections of these categories remain completely deprived.
- The 50% ceiling limit cannot be breached
The Hon'ble Court, speaking through the Constitution Bench in the case of
M.Nagaraj Vs. Union of India &Ors. upheld the Constitutional validity of
Article 16(4A) and the proviso to Article 335 in the following words:
"We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the
compelling reasons, namely, backwardness, inadequacy of representation and
overall administrative efficiency are all constitutional requirements without
which the structure of equality of opportunity in Article 16 would collapse."
In Para 104, the Court specifically states that "As stated above, be it
reservation or evaluation, excessiveness in either would result in violation of
the constitutional mandate."
Thus, the 50% ceiling limit ofreservations has been engrafted as apart of the
basic structure of the Constitution's equality code. This has in fact been
reiterated by the Constitution Bench recently in Jarnail Singhv. Lachhmi Narain
Gupta, which declined to refer the correctness of the dicta laid down in
Nagaraj to a larger bench.
- Imposing reservations on unaided institutions is manifestly arbitrary
Both the Constitution Bench judgments in T.M.A. Pai Foundation and Ors. v/s State
of Karnataka and P.A. Inamdar v. State of Maharashtra make it clear that
the State's reservation policy cannot be imposed on unaided educational
institutions, and as they are not receiving any aid from the State, they can
have their own admissions provided they are fair, transparent, and
non-exploitative and based on merit.
While the impugned amendment attempts to overcome the applicability of Articles
19(1)(g) and 29(2), it remains completely silent on Article 14, which right
protects the citizens from manifestly arbitrary State action. The majority in
Shayara Bano has specifically held manifest arbitrariness as a facet of Article
14. Hence, the effective nationalization of unaided institutions to the extent
of economic reservation is violative of Article 14 of the Constitution on plain
terms and also of the basic features of autonomy and equity.
On these and other grounds, including the undefined "economically weaker
sections" as well as the ambiguous "State" that would define it, the impugned
Amendment ought to be quashed with the same being stayed pending the disposal of
the present Petition.
In light of this amendment. The economically weaker sections of the society will
be getting in jobs and higher education. From a third person perspective,
reservation will no doubt benefit the needy but critically it also violates
certain norms set by the apex court. As of now, two PILs have been filed in the
Apex Court Regarding the violation of doctrine of basic structure of the
constitution with this amendment. The first hearing was on 28/03/19, 2ndon
8/04/19 and the date is now shifted for final hearing on 2/05/19. It can be
hoped that the apex judiciary comes up with a rationale which best fits the
current needs of the society.
Following are the available alternatives:
Conclusion and Remedies
- Spreading the benefits of reservations as widely as possible: Within
the existing framework and ensure that individuals use their reserved
category status onlyONCEin their lifetime. This would require that anyone using
reservations to obtain a benefit such as college admission must register his/her
Aadhar Number and he/she would be ineligible to use reservations for another
benefit for instance job in future.
- Focusing on basic skills: It is important to recognize that future
economic growth in India is going to come from the private sector and
entrepreneurship. In order to ensure that all Indians regardless of
caste, class and religion are able to partake in economic growth, we
must focus on basic skills. We need to focus on reducing inequalities
where they first emerge within primary schools.
- Bringing reforms and modifications: Reservation system was developed
in a different era that we have not had the time or the inclination to
think about its success or to examine possible modifications. The system
thus deserves serious re-evaluation.
The system of reservation had always initiated a conflict between the reserved
and the unreserved categories of the citizens. The former supports the system
while latter criticizes it with logics of multiple amplitudes. Observing from a
neutral perspective it can be stated that although reservation is needed for the
country but at the same time there is a need to create a system which supports
affirmative action more than appeasement politics.
The purpose should connect the needy to the mainstream. India is a rapidly
growing economy; any negative aspect of reservation should not serve as a hurdle
for its development. As it is said that the law is the public conscience, the
faith of the people is upon the apex judiciary which will come up with the best
possible outcome for this conflict.
Written By: Aman Kumar Gupta,
- Indira Sahney v. Union of India, (1992) Supp.3 SCC 217 (India)
- Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India)
- I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1 (India)
- Shayara Bano and others v. Union of India, (2017) 9 SCC 1 (India)
- M. Nagaraj v. Union of India & Ors., (2006) 8 SCC 212 (India)
- Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396 (India)
- M.A. Pai Foundation and Ors. v. State of Karnataka, (2002) 8 SCC 481 (India)
- P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 (India)
- Kashmir Times, SC To Hear Plea On 10 Pc Quota Issue To Constitution Bench On Mar 28, (April 12, 20019, 03.00 AM) http://www.kashmirtimes.com/newsdet.aspx?q=88637 [Note: views are personal]
3rd Year B.A.LL.B, Law College Dehradun
Faculty of Uttaranchal University