On 7th November 2022, the Supreme Court in a 3:2 majority judgement upheld the 103rd Constitutional Amendment Act which provides for reservation to economically weaker sections (EWS). There are intense debates going on in public platforms on the verdict with sharp views on all aspects. In this essay I share my views on the Supreme Court’s judgement.
The 103rd Amendment
The 103rd Amendment to the Constitution reads as follows:
“In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:—
‘(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.
Explanation.— For the purposes of this article and article 16, “economically weaker sections” shall be such as may be notified by the State from time to timeon the basis of family income and other indicators of economic disadvantage.
In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:—
“(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category.”.”
The Amendment to Article 15 enables the State to make special provisions for the advancement of any economically weaker section, including reservations in educational institutions and that the upper limit of EWS reservations will be 10% (meaning up to 10% of seats can be reserved for citizens falling in the EWS category). This will be independent of ceilings on existing reservations.
The Amendment to Article 16 enables the State to make provisions for reservation in appointments upto 10% ceiling, in addition to the existing reservations.
The Challenge
The argument of the Petitioners before the Supreme Court and those against the Amendment can be broadly summarised into 3 points:
1. Reservations cannot be based solely on economic criteria as per the Supreme Court’s judgment in Indra Sawhney case.
2. SCs/STs and OBCs cannot be excluded from economic reservations, as it would be in violation right to equality (which is a fundamental right).
3. The Amendment introduces reservations that exceed the 50% ceiling-limit on reservations.
Questions before the Constitution Bench
Based on hearing the arguments made by the Petitioners and the Government, the Supreme Court framed 3 questions which would be decided by the five Judge Constitution Bench:
1. Whether reservations can be granted solely on the basis of economic criteria?
2. Whether States can provide reservations in private educational institutions which do not receive government aid, as provided in the Amendment?
3. Whether the basic structure is violated by excluding the SEBCs (Socially and Educationally Backward Classes), OBCs, SCs & STs from the scope of EWS reservation?
The Judgement
After detailed hearings, the Supreme Court (in 3:2 split verdict) has answered the 3 questions mentioned above in the following manner:
Question 1: All the judges on the bench agreed that reservation can be granted solely on the basis of economic criteria.
Question 2: All the judges on the bench agreed that States can provide reservations in private educational institutions which do not receive government aid, as provided in the Amendment.
Question 3: Three judges ruled that the basic structure is not violated by excluding the SEBCs (Socially and Educationally Backward Classes), OBCs, SCs & STs from the scope of EWS reservation and two judges ruled that the basic structure is violated and struck down the Constitutional Amendment.
Therefore, the Supreme Court upheld the Constitution (103rd Amendment) Act by a majority of 3:2.
An Opinion on the Judgement
I have recorded my views on the judgement in two parts. The first part deals with providing reservation solely on the basis of economic criteria and the second part deals with whether EWS quota violates basic structure of the Constitution and Indra Sawhney judgment.
- Reservation based on Economic Criteria & Exclusion
When the Constitution was framed, it was decided to pursue the upliftment of the classes that were historically oppressed through affirmative action. Since the Mandal Commission era (since when OBCs are provided with reservation), several committees deputed by the Government have said that socio-economic parameters must be used to determine the backwardness of a caste to see whether they must receive the benefits of reservation or not. And moreover, how can one say economic criteria should not be used to determine reservation while they support the creamy layer principle (which is based on economic criteria)?
While we recognise that there are still cases of oppression of certain castes and tribes, we must also recognise that the effect of historical oppression has decreased to a large extent. It is also important to understand that State is bound to promote social equality and pursue welfare of weaker sections of society under Article 46 of the Constitution. This makes the Constitutional Amendment necessary in order to ensure fair and equal opportunity for a large number of citizens who are excluded from higher educational institutions and are not covered under existing reservation schemes.
It is also not right to quote the Indra Sawhney case to argue that reservation cannot be provided solely on economic criteria. The scope of that case is restricted to Article 15(4) and Article 16(5) which deal with socially and educationally backward classes, Scheduled Caste and Scheduled Tribes, which form a completely different category. The Supreme Court itself has stated in the Indra Sawhney judgement that it is not dealing with economically weaker section citizens getting reservation. The relevant quote from that judgement is as follows: “However, the provisions of Article 46 should not be confused with those of Article 16(4) and hence the expression “weaker sections of the people” in Article 46 should not be mixed up with the expression “backward class of citizens” under Article 16(4). The purpose of Article 16(4) is limited. It is to give adequate representation in the services of the State to that class which has no such representation. Hence, Article 16(4) carves out a particular class of people and not individuals from the “weaker sections”, and the class it carves out is the one which does not have adequate representation in the services under the State. The concept of “weaker sections” in Article 46 has no such limitation. In the first instance, the individuals belonging to the weaker sections may not form a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an identifiable class but that class is represented in the services of the State adequately, as individuals forming weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). Thus, not only the concept of “weaker sections” under Article 46 is different from that of the “backward class” of citizens in Article 16(4), but the purpose of the two is also different. One is for the limited purpose of the reservation and hence suffers from limitations, while the other is for all purposes under Article 46, which purposes are other than reservation under Article 16(4). While those entitled to benefits under Article 16(4) may also be entitled to avail of the measures taken under Article 46, the converse is not true. If this is borne in mind, the reasons why mere poverty or economic consideration cannot be a criterion for identifying backward classes of citizens under Article 16(4) would be more clear. To the consideration of that aspect we may now turn.”
To further strengthen my, I now quote another judgement of the Supreme Court in the Society for Unaided Private Schools of Rajasthan v. Union of India, (2012) in which the validity of validity of the Right of Children to Free and Compulsory Education Act, 2009: a flagship legislation of the UPA Government enacted to give effect to Article 21-A of the Constitution was challenged. In this case, a 3 judge bench of the Supreme Court held that the Act is in consonance with Article 21 of the Constitution as it removes all barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission. It further held that earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14 and that that the provisions provided for a level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees. Therefore, the provisions were upheld on the test of Article 14 of the Constitution as well.
With this being the settled Law, challenge to the 103rd Amendment (EWS) does not stand if the premise is that reservation is provided solely on economic criteria and that EWS excludes SC, ST and OBC.
In the next part, I will share my opinion on whether EWS quota violates basic structure of the Constitution and Indra Sawhney judgment.
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