Amendment of Constitution of India, is making changes to what is written in
the constitution. The method or process is given in Part XX (Article 368) of
Indian Constitution. This provision given in the constitution helps to maintain
sanctity of the constitution and helps to keep the powers of Parliament in
As of now the Constitution of India has already been amended 105 times. The
first amendment of the Constitution took place on 18th June, 1951. In this
numerous sections of the Constitution were amended including Article 15, 19, 85,
87, etc. Here we would be dealing with the 103rd amendment of the Indian
The One Hundred and Third Amendment of the Indian Constitution, officially known
as the Constitution (One Hundred and Third Amendment), Act, 2019. It got its
assent on 12th January, 2019 and commenced from 14th January, 2019. This
amendment introduced 10 percent reservation for Economically Weaker Sections (EWS)
It was brought in for giving admission to this class of people to Central
Government run institutions and also the private institutions. The exception to
this list was institutions run by minority groups.
The 103rd Constitutional amendment act got assent of the President of India on
12th January, 2019. By this amendment, the lawmakers have inserted article 15
(6) and 16 (6) in the Indian constitution. These newly added articles provide
for up to 10% reservation to economically weaker sections of the society for
getting admission in higher educational institutions and initial appointment in
The unique feature of this amendment is that it is applicable to economically
weaker sections of the society. other than the schedule, caste, scheduled Tribes
and other backward classes. The next remarkable feature of this amendment is
that this 10% reservation to the economically weaker section of the society
applied not only to government educational institutions and government aided
educational institutions but also to private unaided educational institutions.
But this reservation is not applicable to those educational institutions which
are run by minority educational institutions.
If we look into the provisions under article 15 and 16 of the Constitution. It
appears that the earlier amendment to these parts of the Constitution already
provided for reservation in admission of the citizens of India in government
aided and private educational institutions to socially and educationally
backward classes of the SC and ST community and their initial appointment in
government jobs. By the instant amendment, the government has only extended the
benefit to one more class of citizens.
As per the law makers, like the socially and educationally backward classes of
SCs and STs, the economically weaker person of the society, who were below the
poverty line also needed promotion by the government so that all round
development of the society can be achieved. The lawmakers have justified this
amendment on the ground that by bringing this amendment.
The state has performed his duty by applying the recommendations of Economically
Backward Classes Commission which had suggested to make reservation in
educational institutions and also reservation in public appointment as it will
provide equal opportunity to a large number of poor Indians who are excluded
from getting admission in higher education institutions or fail to get
employment in government jobs
Criteria for Reservation:
- EWS reservation is only for General Category citizens. People in other
categories are already excluded from it. It includes OBC (27%), SC (15%), ST
- A family of General Category, having annual income less than Rs. 8 Lakh
comes under the category for EWS reservation
- To fall under EWS category one should not own agricultural land of size
5 acre or more.
- To come under EWS reservation, a family should not be in possession of a
residential flat whose area is 1000 sq. Feet or higher.
To fall under EWS category, a family should not own a residential plot of 900
sq feet in notified municipalities or a residential plot of area 1800 sq feet in
areas which do not come under notified municipalities.
Reservation eligibility is based on historical injustice, educational
underachievement, and social exclusion. Each community has areas that are
economically less stable. EWSs are not a result of social prejudice. Instead,
the emergence of economically disadvantaged groups is due to poor economic
policy, unemployment, and other factors.
Even while there is economic backwardness, caste-based discrimination—not
economic backwardness-is what drives social inequality, as shown by the
predominance of upper castes in political, social, and cultural arenas.
Examining the Right of Children to Free and Compulsory Education Act of 2009 can
help us better understand the folly of the reservation for EWS through the
constitutional amendment of 2019.
"Child belonging to disadvantaged group" is defined in Section 2(d) of the Act
as a child who belongs to one of the groups mentioned in Article 15(4) of the
Constitution, namely SCs, STs, SEBCs, or to any other group that is
disadvantaged due to social, cultural, economic, geographic, linguistic, gender,
or any other factors that may be specified by the relevant government through
notification. The term "child belonging to weaker section" is defined in Section
2(e) of the Act to include a kid whose parent or guardian's yearly income is
below the minimal threshold established by the relevant authority.
According to the RTE, the definition of an economically weaker group is purely
dependent on the family's income. The children covered by Sections 2(d) and 2(e)
of the Act overlap according to these definitions. The economically less strong
segments of the socially backward strata are not specifically excluded by the
definition under Section 2(e). This means that a class cannot be defined solely
by economic identity.
Article 46 of the Constitution provides a comparable illustration. The weaker
groups of the population are not defined by the Constitution. The Constituent
Assembly similarly gave up on such an endeavor. Due to this, the Supreme Court
used a means test to evaluate EWS using annual income in the 1990s. However, the
Indra Sawhney case made it clear that "weaker portions of people" go beyond SCs,
STs, SEBCs, and "backward class of citizens" and encompass all social groups
that are made weak owing to a variety of factors, such as poverty and physical
as well as natural deficiency. The Court did not state that economically
depressed areas exclude communities from social disadvantage.
Even though backwardness can result from physical impairments, geographic
isolation, etc., in addition to social discrimination, the Constitution (103rd
Amendment) Act, 2019, which introduces reservation for EWS, expressly excludes
SCs, STs, SEBCs, and backward classes from its sections. Therefore, a group
formed on the basis of low family income cannot be classified as a class when
the SCs, STs, SEBCs, and backward classes are eliminated. They only make up a
group of individuals who are only economically backward and so disadvantageous.
Reservations cannot be made using an economic standard.
The purpose of articles 15(4) and 16(4) is to reduce discrimination based on
caste. Reservation is not available to those who were married into notified
community members or were born into upper-caste families. The ideas of
distributive fairness or utilitarianism are not the foundation of reservation
under the Indian Constitution. One can reasonably draw the conclusion that
reservation is founded on the idea of compensating justice and is solely
intended for those groups who are socially disadvantaged based on records from
the Constituent Assembly and via analyses by renowned Indian jurists.
Discrimination based on caste is a widespread issue. Economic mobility does not
immediately eradicate caste prejudice. Caste-based prejudice is shown in the
Constitution (103rd Amendment) Act, 2019. It is assumed that the economically
poorer segments of the upper caste community would have been qualified for
entrance to educational institutions and appointments to public offices if it
weren't for their financial hardship.
Therefore, unlike reservation for SCs, STs, and OBCs, their inclusion in
reservation did not lead to discussions about meritocracy. However, in order to
be eligible for reservation, a member of one of the backward
classes-specifically, the SCs, STs, SEBCs, and backward classes-must not only
demonstrate their membership in the community that has been notified of their
eligibility but also to show that they are also economically backward and do not
fall within the 'creamy layer'. In addition, it took the Supreme Court 69 years
to recognise that, for the socially disadvantaged classes, administrative
effectiveness must be evaluated in the context of social fairness rather than a
constrained view of skill and accomplishment.
It amounts to delegitimizing the lived reality of the social oppressions
encountered by the depressed classes in favor of the economic disadvantages
faced by forward societies when economic backwardness is given more weight than
social backwardness. The Constituent Assembly agreed, as was covered in the part
prior, that the administration did not have unrestricted authority to include
any community in this clause as it saw fit. The main criteria for the
notification of communities under these laws were social and educational
illiteracy. As a result, this amendment departs from the intent of the
Articles 16(4A) and 16(4B)'s constitutionality was contested before the Supreme
Court in the Nagaraj case. The Court established two standards to examine if
there is a violation of the constitution's fundamental principles while
affirming the legality of these two constitutional changes. The width test
prevents going outside the parameters of a provision. The identity test verifies
that the features of the provision have not changed.
All socially and educationally underprivileged communities have been included in
the scope of reservation regulations. Any class established exclusively on the
basis of economic illiteracy has been disregarded by the constitutional text's
authors as well as by judges in legal proceedings. Reiterating that reservation
is not acceptable for the identity test as reservation is not a poverty
The Constitution has provisions to protect against social discrimination and end
social and educational sluggishness in the chapter on fundamental rights.
Determining the identification of the Constitution (103rd Amendment) Act, 2019,
thus, may not be successful. This suggests that the Constitution (103rd
Amendment) Act might be against the fundamental notion of structure.
Finally, Indra Sawhney has already stated that making a reservation exclusively
based on economic considerations is a clear violation of the constitution's
clause 16(1). Therefore, the conflict caused by Articles 16(1) and 16(6) of the
Constitution is not resolved by just converting an invalidated office memorandum
into a constitutional amendment.
The Supreme Court has received a challenge to the Constitution (103rd Amendment)
Act, 2019's constitutionality. The Court's ruling is anticipated. This issue was
brought up in a recent Supreme Court decision by a five-judge panel involving a
relevant reservation-related issue. Nevertheless, because the matter is still
before the court, the court chose not to comment on it.
An originalist or a functionalist approach may be used to interpret a
constitution. The fear that certain constitutional interpretations may disturb
the majority and the socially dominant classes should not compel courts to
continually decide constitutional issues. The rule of law must serve as a
guidance for how the constitution should be interpreted. The Supreme Court has
frequently had to act as a mediator between those who support the status quo of
social hierarchy and those who want social change while interpreting reservation
rules under the Indian Constitution.
The court had to strike a compromise between competing demands in order to keep
peace. Some notable instances include implementing the "creamy layer" test for
backward classes, putting a 50% cap on reservations, and imposing interim
injunctions on order implementation. Even though the court made many of these
judgements in an effort to keep the peace, jurisprudence has since adopted them.
The CAD, the text of the constitution, and judicial rulings all reveal some
fundamental aspects of reservation in India. Only the CAD has remained constant
and timeless among these sources. Over time, both the constitutional text and
court rulings have undergone character changes. The shifts have been gradual and
steady, one step at a time.
However, the judiciary and the legislature, respectively, have taken perilous
moves that may depart from the fundamental elements of reservation with the
creation of the "creamy layer" test for the SCs and STs and the introduction of
reserving for EWS among the non-backward classes. The court established the
width and identity tests to evaluate the basic structural breach while affirming
the constitutional validity of the amendment imposing reservation in promotion.
These criteria established in Nagaraj demonstrate that a constitutional
provision's fundamental qualities cannot be pushed to such length that it loses
It can seem like only extending current practice to apply the "creamy layer"
test to SCs and STs. Similar to the 50% reservation for backward classes, adding
a quota for economically weaker parts within non-backward classes may seem like
a good idea to help the poorer classes of people.
However, it's possible that these two changes modify reservation's fundamental
properties. The "creamy layer" test's application to groups seen to be socially
and economically backward prioritizes and legitimizes economic backwardness as
the root cause of inequality. A subsequent five-judge bench disregarded a
nine-judge bench's advice not to apply the "creamy layer" test to SCs and STs.
This represents judicial misconduct. A court-invalidated office memo that
introduced reservation for the EWS has been changed into a constitutional
amendment. This is true of the most recent constitutional amendment.
Additionally, the CAD shows that the assembly debated and rejected the reserve
based on economic backwardness. Both of these phenomena raise the possibility of
reestablishing the socio-economic hierarchy that the Constitution meant to