This article has been written by Siddharth Addy and Aniket Bhowmick, students of Amity Law School, Kolkata.

Abstract

Reservations have had a checkered political history in the areas subjected to public employment and admission to the higher educational institution. The concept of reservation is positive discrimination and revolves around providing justice to a historically disadvantaged group. Since Post Constitutional Development we have a settled principle that the reservation must be limited to 50%. Though 103^rd amendment in the Constitution is the latest step in overruling the laws propounded by the Hon’ble Supreme Court ruling, (1) Economic backwardness cannot be sole discretion for reservation[1] (2) The total reservation must not exceed 50 % criteria[2]. 

The Constitution 103^rd Amendment 2019 empowered the states to provide 10% reservation in areas of government employment and admission into higher education institution for “Economically weaker section of the society” other than the backward communities in India; this would increase the total reservation by 59.50%[3]. All these years the 50% reservation ceiling was the foundation rule which stood on the way of the demand of greater reservation by various pressure groups. This was invalidated by the 103rd amendment.  

The solution which shall be propounded here to legally validate the constitutionality of the103rd amendment is the amendment is contradicting or abrogating “Doctrine of basic structure”[4] laid down by the Hon’ble Supreme Court.

Reservation: A misunderstood request

The adamant of reservation is closely linked to the caste system, the caste-based discrimination finds it’s erstwhile in the Varna system of the Hindus. To overcome this inequality the Hon’ble Supreme Court passed judgment in Indra Sawhney case with the ulterior motive to reconcile the conflict between the poor and raising their standard of living. The key feature which revolves around the Indian Political fore was the “50% ceiling” which was overlooked baldly in the 103^rd amendment of the constitution.

The Honorable Dr B. R. Ambedkar stated in the debate of the constituent assembly in 1948 as follow: 

“Supposing, for instance, reservations were made for a community or a collection of communities, the total of which came to something like 70 per cent of the total posts under the state and only 30 per cent are retained for the unreserved. Could anybody say that this is satisfactory from the point of view of giving effect to the first principle, namely, that there shall be equality of opportunity? It cannot be in my judgment. . . Therefore, the seats to be reserved must be confined to a minority of seats. . . If honourable Members understand this position that we have to safeguard two things namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State, then, I am sure they will agree that unless you use some such qualifying phrase as “backwards” the exception made in favour of reservation will ultimately eat up the rule altogether. Nothing of the rule will remain”[5]

Clearly, India’s discourse on reservation hinges not on whether it should exist, but on who should benefit from it.[6] 

Introduction to the 103^rd Amendment Bill

The 124th Amendment Bill, 2019, was presented in the Lok Sabha on January 08, 2019, with an aim to provide reservation in both education and public employment to ‘economically weaker sections’ of the general public. The Bill was passed in the Lok Sabha with just three individuals casting a ballot against it out of the 326 individuals present and subsequently being passed by Rajya Sabha also with no proposals. On being endorsed by both the Houses of the Parliament, when the President of India gave his consent to the Bill, the 103rd Amendment Bill, 2019, came into power with impact from January 14, 2019, as informed in the official gazette by the Central Government.

This reservation is “in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category”. The Statement of Objects and Reasons of the Bill states that “people from economically weaker sections of the society have largely remained excluded from attending the higher educational institutions and public employment on account of their financial incapacity to compete with the persons who are economically more privileged.” The bill expresses that it is drafted with a will to order Article 46 of the Constitution of India, a Directive Principle that desires the administration to secure the instructive and monetary interests of the weaker sections of the society. While socially impeded areas have appreciated the investment in the work in the administrations of the express, no such advantage was given to the economically backward sections.

The constitutional validity of the 103^rd Amendment

The policy of reservation is an issue that almost every Indian citizen born post-independence has criticized or utilized it at some stage in their life. Deciding the constitutionality of reservation under the constitution of India is deeply impacted by several sacrosanct facts which shall be deemed major.

The 103^rd Amendment introduced Article – 15(6)[7] and Article- 16(6)[8] thereby creating reservation for the economically backward class of the society, The problem with this is Its provision are contradicting with the Indra Sawhney judgment passed by the Hon’ble Supreme Court and thereby contradicting with the provisions of the Article 141[9] of the Indian Constitution, Moreover passing of the 103^rd amendment is widely criticized on the grounds that it won’t stand the test of “Doctrine of Basic Structure”[10] thereby said amendment shall be deemed Ultra Virus if not otherwise. The Basic Structure lay down that its main work is to treat the unequal as equals but it’s over-representation of caste/class-based system contradicts with the equality code of the constitution. 

In the said case of Janaki Prasad Parimoo v. State of Jammu and Kashmir:[11] “Mere poverty cannot be the test of backwardness because in this country except for a small percentage of the population, the people are generally poor – some being poorer, others less poor. . . In identifying backward classes, one has to guard oneself against including therein sections which are socially and educationally advanced because the whole object of reservation would otherwise be frustrated.”

The 103^rd amendments have created a paramount mess and have put groups to stand the test of constitutionality to determine Socio-political and educational backwardness at war by the inclusion of Article 15(6), 16(6). In the test of Constitutional validity for creating a reservation, necessary provisions must be amended in the Constitution for the adequate development of the backward class while matching the standards of the code of equality.   

Conclusion

Now, since the constitution stands changed or amended, the sole challenge for the 103^rd amendment is its conformity to the doctrine of basic structure as it has been an established fact that reservation shall have a cap of 50%. These stipulations first arose in M.R Balaji v. State of Mysore[12] when the court stated that reservation above 50% would imply dominance over section 16(1). The government notification providing 10% reservation to weaker economic sections of society was struck down in Indra Sawhney v. Union of India[13]. But these rulings were given with respect to law or subordinate legislation and have never been discarded in violation of Basic Structure Doctrine.  

The question hence arises that whether reservations, both caste-based and economic backwardness violates the concept of equality? Clearly, it poses a threat or damages the concept of equality since the general classes of people are the ones who are suffering. 30% of the country’s population belongs to the general category and with 59.50% seats reserved for education and public employment, the basic right of employment and education are being denied to many. Moreover, many of SC, ST, OBC students cannot cope up with the level of education or are unable to pay the fees and hence drop out their respective institutions. A recent study has found that as many as 37 per cents Scheduled Caste students and 49 per cent Scheduled Tribe students stop studying after initial years of schooling[14]. Many deserving students are unable to obtain a seat in a school, college or job due to lack of seats for general category. In India, the numerically huge however socially and instructively in backward positions/classes have utilized constituent governmental issues and their administrative clout to propel their interests in both education and employment. As referenced before, in the matter of Constitutional amendments identifying with reservations, the Supreme Court has by and large been passive, and the main area where it has taken a firm stand so far is with respect to the ’50 per cent ceiling rule’. 

The following solutions may be propounded/ considered:

1. The Supreme Court subdues the Constitution (103rd Amendment) Act, 2019. As ultra vires as the “basic structure” doctrine as it improves and concretes the portrayal of the already much-represented class/classes; and subsequently, damage the code of equality of the Constitution to the point of being unrecognizable.

2. The reservation quotas for all the four classes i.e. SC, ST, OBC and EWC can be reduced such that the total reservations do not exceed the 50% margin. 
3. There may be set up of a proper investigation committee who would check the financial potential of the individual and only give reservation to those who actually requires it.
4. The Supreme Court may as well form a larger bench to correct the infirmities of the 103^rd

The 103rd amendments have made a principal mess and have put gatherings to stand the trial of lawfulness to decide Socio-political and Economical backwardness at war by consideration of Article 15(6), 16(6). In the trial of Constitutional legitimacy for making reservation essential alterations shall be made in the Constitution for the sufficient improvement of the backward class while coordinating the models of the code of equality.

Endnotes

[1] Indra Sawhney V. Union Of India ( 1992)

[2] M.R. Balaji & Ors V. State Of Mysore (1963)

[3] The memorandums effectively contemplated reservation of 59.50% in central government posts 22.5% for SC/ST, 27 % for OBC and 10% for economically backward Sections

[4] Kesavananda Bharati V. State Of Kerala (1773)

[5] Constituent assembly debate(proceeding),vol.8,The constituent assembly debate(23rs September,2019)  https://www.constitutionofindia.net/constitution_assembly_debates/volume/8/1949-05-23

[6] Zia Mody, Ten Judgment  That Changed India

[7] 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  10%  of the total seats in each category

[8] 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.”.

[9] 141. Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India

[10] 1973 4 SCC 225

[11] 1973 AIR 930, 1973 SCR (3) 236

[12] M.R Balaji v. State of Mysore, 1963 AIR 649

[13]  Indra Sawhney v. Union of India, AIR 1993 SC 477

[14] SC/ST dropout rate High, The Hindustan Times,(22^nd September 2019) https://www.hindustantimes.com/india/sc-st-dropout-rates-high/story-wp4DgXyvn5l8e21JlJV4HK.html

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