By: Sneha Tripathi* |
Introduction
Indian society is an example of hierarchical society because innumerable castes and sub-castes are placed one over the other. The hierarchy of these castes is accompanied by privileges and disadvantages. This made some castes more disadvantaged than the other. The disadvantage was identified on the basis of social and educational backwardness. These backward classes are not a homogenous group and consist broadly of three groups: the scheduled castes, scheduled tribes and other backward classes (OBC). With India becoming a republic in 1950, various constitutional policies came into the picture to ensure justice, liberty, equality and fraternity for all. To secure these, Fundamental rights were provided under Part III of the Constitution of India.
In the year 1980, following the judgment of the Honorable Supreme Court of India in the case of Indira Sawhney vs Union of India, the Mandal Commission report was implemented which allowed reservation of 50% in the educational and service sector for the Schedule caste, Scheduled tribes, and other backward classes. In the Indra Sawhney case, the Apex Court said that there may arise some extraordinary situations due to the inherent diversity of the country and its people. Therefore, some relaxation may be provided in this strict rule but extreme caution is to be exercised while doing that.
The socially backward groups constitute 70% of the total population of India. The reservation provided to them helped in bringing progress in their status and uplifting them from the poverty line. The legislature started to frame policies for the upliftment of economically weaker sections of the society which belong to the general as well as other categories. The 103rd Amendment Act, 2019 was passed by the legislature on 9th January 2019. This amendment provided for reservation of 10% in educational institutions and government jobs to the economically backward section of the general category.
Equality and India
Equality of opportunity is a complex idea that can be divided into two categories: formal and substantive equality of opportunity. In formal equality of opportunity, the state treats everyone as equal before the law. Whereas under substantive equality of opportunity, the disadvantages caused due to historic injustices are taken into consideration and positive action is needed to provide a remedy to the situation to enlarge the capabilities of the community that suffered those injustices. Often, formal equality of opportunity can seem to be insufficient in eliminating discrimination and cannot remove the barriers to unequal competition.
The 103rd amendment took place after the consideration of the Sinho Commission report which stated that a substantive section belonging to the unreserved category is living below the poverty line. These economically backward classes are at a disadvantage due to the lack of resources and poverty which has denied them the opportunity to any of the reservations because they do not belong to the backward classes as defined by the Supreme Court of India in the Indira Sawhney case. The constitutional (103rd Amendment) Act, 2019 amended Article 15 and Article 16 of the Constitution and inserted 15(6) and 16(6) to it. The new amendment enables the state under Article15 to provide reservations for the advancement of economically weaker sections of the society in the educational institution whether private, public aided, or unaided by the state. Under Article 16(6), the reservation in case of public employment for the economically backward classes is provided.
The Amendment Bill relies upon Article 46 under Part IV, Directive Principles of State Policy, of the Constitution which describes the State's responsibility to provide special care to the interest of educationally and economically weaker sections. Also Article 38 and Article 39 mandate the state to provide social, economic justice and minimize any inequalities in income and opportunities. Though the court is under no obligation to enforce Directive Principles of State Policy, they should attempt to harmonize these principles with the fundamental rights.
The explanation with the amendment provides for the meaning of 'economically weaker sections' that will be determined and decided by the state from time to time based on family income and other indicators of economic disadvantage. Articles 15 and 16 of the Constitution of India have guaranteed the right to equality while also enabling the state to positively discriminate. This positive discrimination is known as reservation.
The Supreme Court of India through various landmark judgments has provided for the principle that should always be taken into consideration by the legislature while framing any law. The limit was set at 50% regarding the reservation in India to prevent the exception from overriding the rule. With the 103rd amendment, the government will exceed the capped limit of 50% reservation and the constitutionality of the amendment will be in question. The logic for imposing the 50% cap on the reservation is to maintain a balance between the constitutional principles of equality, social justice, and efficiency. Thus, the reservations do not limit the provisions of equality provided in the Constitution, but just elaborate upon them as the 50% limit has no concrete justification in the Constitution.
Article 15 provides equality to all citizens and prohibits discrimination on the basis of religion, race, caste, sex, or place of birth. It also provides the state with the power to make any special provision for the upliftment of socially and educationally backward classes. Article 16 ensures that every citizen of India is provided with equal opportunity in matters of public employment. Under Article 16, the state is provided with the power to make any provision of reservation for the backward classes which are not adequately represented in the services of the government.
Constitutionality of the 103rd Amendment, 2019
To decide whether the amendment is violative of the constitutional principles or not, it is pertinent to decide whether the provisions of the amendment are against the basic structure doctrine. It was held in Kesavananda Bharti vs. State of Kerala that the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”.
Several pleas were filed before The Honorable Supreme Court of India, challenging the 103rd Amendment Act, 2019 under Article 14 of the Constitution of India which provides the right to equality. These pleas were of the opinion that the economic criteria cannot be the sole basis for granting reservation to any one group. The amendment provides reservation to the individual below and income of Rs. 8 Lakh per annum with the aim of achieving social equality in higher education and employment opportunities. The Court decided to listen to the matter without implementing any stay on the law. The arguments provided by the petitioner, which included Youth for Equality, was that the reservations cannot be solely based on economic criteria and scheduled castes, scheduled tribes, and other backward classes cannot be excluded from the economic reservations as it would be violative of their fundamental right to Equality provided under Article 14. Further, the amendment introduced reservation exceeding a 50% ceiling limit which was established in the case of Indra Sawhney Vs. Union of India. Also imposing these reservations on the educational institutions that do not receive state aid would violate their right to equality. The three-judge bench of the Supreme Court referred the case to a five-judge bench as overturning the nine-judge bench judgment of Indira Sawhney would require a larger bench.
Some States have also exceeded the 50% limit on reservations, one such example being Tamil Nadu, which continues to give 69% reservation by placing that reservation policy in the ninth schedule of the Constitution which keeps legislations beyond the Ambit of Judicial review. The Apex Court in the case of IR Coelho vs. State of Tamil Nadu held that the laws placed under the ninth schedule are also subject to judicial review, thus, taking away that Shield from the legislators.
Until the judgment of IC Golaknath vs. State of Punjab, any fundamental right could have been amended by an amendment Act passed by the Parliament. But after this judgment, the fundamental rights provided under Part III of the Constitution were to be excluded from the ambit of the amendment conferred under Article 368 leaving Fundamental rights as non-amendable. Sajjan Singh vs. State of Rajasthan also addresses the definition of the basic structure of the Constitution.
After the case of Keshavnanda Bharati vs. the State of Kerala, all the constitutional amendments have to pass the test of the basic structure principle which takes into consideration the vital principles of the Constitution, that is, democracy, secularism, equality, and republicanism. The Apex Court in this landmark judgment said that if a constitutional amendment tries to destroy the basic structure of the Constitution, it can be struck down by the judicial intervention to protect the core or the essence of the Constitution. The core principles of the Constitution are beyond the amendment powers of the legislature and have to be prevented from destroying the identity of the constitution. What constitutes the identity of the Constitution would be determined by the Court in the context of every case and would interfere with it accordingly. In the case of the 103rd amendment, equality is not to be compromised.
In KC Vasant Kumar vs. State of Karnataka, the constitutional bench discussed various characteristics of backward classes and laid down the guidelines which included economic criteria as the most important factor for determining backward classes. For identifying backward classes, the class needs to be comparable to scheduled caste and scheduled tribes and must satisfy the test of economic backwardness. The Supreme Court in dealing with limitations on the reservation in Indra Sawhney case said that reservations referred to in Clause (4) of Article 16 do not exceed 50 per cent. They dealt with reservation only under Article 15(5) and Article 16(4) of the Constitution.
Conclusion
After Independence, there were a large number of underprivileged sections in India who experienced discrimination due to the caste system and there wasn't an adequate representation of these weaker sections in the society. The framers of the Constitution made an effort to provide these weaker sections with equality with the help of positive discrimination through provisions like the reservation. As the times have changed, the criteria for detecting social backwardness have also changed. But poverty still remains a major concern and a barrier to attaining equality. The Government through the recent amendment has taken a step to uplift the economically backward class from this discrimination and achieve equality.
Thus, attempts have been made to put these weaker groups, through the policy of reservations, at par with the other sections of society, which is viewed as positive discrimination introduced in the Constitution. Caste can no longer be the sole criterion for detecting socially disadvantaged groups with the changing times, as some of them have attained the economic status and dominant role. The quota provided under the amendment covers around 20 crore citizens. The Preamble of India provides for social and economic justice and the reservation for economically backward classes focuses on minimizing economic inequality. What deserves focus is that the 10% quota for the economically backward population is the first policy of reservation for those not currently falling under any quota.
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* The author is a student at Hidayatullah National Law University, Raipur.