The article is written by Harmanpreet Kaur from Amity University, Kolkata. The article will provide an overview of the Constitution one hundred and third amendment Act, 2019.
The Constitution has been amended numerous times to keep pace with the changing developments in society. The Constitution was fabricated to create an egalitarian society wherein social, economic, political justice is maintained, the equality of status and opportunity is made available to all. The amendments in the Constitution are also made with the corresponding aim and objective. The legal history of India states that whenever the Supreme Court pronounced its judgment with respect to reservations, the parliament would either repudiate or bridle the inconvenient judicial pronouncement, and make amendments to the Constitution. One such instance is the enactment of the Constitution (One Hundred and Third Amendment) Act, 2019, which was ratified with the aim to provide reservation to the economically weaker sections of society.
The Constitution Amendment Act, 2019 made amendments to Article 15 and Article 16 of the Constitution of India. These two articles are the backbone of reservation in areas related to education and government jobs. The act by adding two new clauses to Articles 15 and 16 of the Constitution has empowered the state to provide a maximum of 10% reservation for “economically weaker sections” of the society. As a result, the total reservations over and above the existing scheme have increased to 59.50 percent.
The Constitutional Amendment Act, 2019 would benefit 190 million people of India. According to the report published by UNDP 2018, the poverty rate in India has reduced to 27.5 percent. According to the Niti Ayog’s report of 2018, it was stated that more Indians have been victims of poverty, hunger issues, and economic inequality. So, this Act was actually introduced to alleviate poverty and provide economic equality to people from all spheres.
The article will deal with the necessity of amending the provisions of the Constitution and will give a synopsis of the 2019 Act i.e, Constitution 103rd Amendment Act.
The necessity of amending provisions in the Constitution
The Constitution is amended for the social and economic development of society. It was observed in the case of Keshavanada Bharati v. The State of Kerala (1973) that if no provisions were made for the amendment of the Constitution, the people would have recourse to extra-constitutional methods like a revolution to change the Constitution. It has been the nature of the amending process in a federation that has made the politicians classify the federal constitution as rigid. The procedure of amendment in the American Constitution is very difficult. The common criticism of the federal Constitution is that it’s too conservative and is too difficult to alter.
So, in order to prevent rigidity, the Indian Constitution was written in such a way that it could adapt to the changing demands and conditions of a growing population. But the framers even did not want to make the Constitution too flexible which would be a play on the whims and caprices of the ruling party. Thus, the Constitution is neither too rigid nor too flexible for the changes. Willis had stated for the Constitutional Law of the United States that “If no provisions for the amendment were provided, there would be constant danger of revolution. If the method of the amendment were too easy, there would be the danger of too hasty action all the time. In either case, there would be a danger of the overthrow of our political institutions”.
Hence, the purpose for amending the Constitution under Article 368 was made with an intention to make social changes. The amendment of the Constitution acts like a safety valve, which is devised in order to give protection to the provisions of the Constitution and to amend it whenever necessary. The constitution-makers have thus maintained the balance between the danger of having a non-amendable Constitution and a Constitution that is too easily amendable.
The Constitution One Hundred and Third Amendment Act, 2019 – An overview
The Constitution Amendment Act, 2019 was amended with a view to advance the reservations for the economically weaker sections of the society. The Act made amendments to Article 15 and Article 16 of the Constitution of India.
Legislative antiquity of the Bill
The Bill for the Constitution One Hundred and Third Amendment Act, 2019 was introduced in the Lok Sabha on January 8, 2019, by T.C.Gehlot, a minister of the Department of Social Justice and Empowerment. The Bill was introduced with the aim to amend Articles 15 and 16 of the Constitution of India, and the Bill received approval from the lower house on January 8, 2019. The Bill was then passed and approved by the Rajya Sabha on 9th January 2019. After the bill was passed by the Lok Sabha and the Rajya Sabha, the passage of the bill was described as the “landmark movement in the nation’s history” by Prime Minister Narendra Modi. The Bill was passed to set into motion the process to achieve an effective measure ensuring social justice for all the sections of society. It was stated by Prime Minister Narendra Modi, “It is our endeavor to ensure that every citizen or poor person irrespective of caste, creed or religion gets to lead a life of dignity and gets access to all the possible opportunities”. Thus, the bill was obligated to the principle of ‘Sabka Saath, Sabka Vikas’. The Bill finally received assent from the President and came into effect on January 14th, 2019.
Article 15 and Article 16
Article 15 states that:
- No person should be discriminated against on the basis of religion, race, caste, sex, or place of birth, or any of them.
- The states should not discriminate against the citizens of the nation with regard to access to shops, hotels, etc, and all places of public entertainment, of public resorts, wells, tanks, roads, etc.
- The state should make provisions related to the protection of women and children for their welfare and safety.
- The state can or may make special provisions for the protection of the interests of the backward classes.
Article 15(6) was introduced by the Constitution(one hundred and third Amendment) Act, 2019 which states that:
- Economically weaker sections should be considered as a prime factor;
- The provisions related to their advancement should be taken up by the state;
- Economical weaker sections of the society should be given a reservation of a maximum of ten percent;
- The reservations should be made with respect to educational and private educational institutions;
- The respective reservations should be made by the state after taking into consideration the family income and other economic factors.
Article 16 states that:
- There should be equal opportunity for all the citizens in the interests of employment or appointment to any post under the state;
- There should be no discrimination on the basis of religion, race, caste, sex, descent, place of birth, or residence in terms of employment or office;
Article 16(6) was introduced by the Constitution(one hundred and third Amendment) Act, 2019, which states that:
- No government authority or any other person or authority shall prohibit the state from making any laws related to the reservations of economically weaker sections;
- The laws made for their reservation should not exceed ten percent.
The amendments made in the Articles 15 and 16 were made with an aim to uplift the economically weaker sections of the society, who are of the general category, and to provide ten percent reservation in the jobs and educational institutions in the center, state or union territories to economically weaker sections of the society for social and economic development.
Does the act violate the Doctrine of Basic Structure of the Constitution
The Public Interest Litigation was filed under Article-32 of the Constitution of the Supreme Court by the non-profit organization named Youth for Equality alleging and stating that the legislation’s decision to grant reservation of ten percent with respect to private and governmental educational institutions to the members of economically weaker sections in the society is going against the basic structure of the Constitution and it also overrides the previous decisions of the Supreme Court.
The question that arises first is that can the fundamental rights be amended? This can be explained through the case of Shankari Prasad v. Union of India (1951), in which the validity of the Constitution First Amendment Act, 1951 was challenged that inserted Article 31 A and Article 31 B. The Amendment was challenged on the ground that it contravenes the rights conferred by Part-III which fell within the prohibition of Article 13(2) and hence was void. It was argued that the ‘state’ in Article 12 includes Parliament and the word ‘Law’ in Article 13(2), therefore, must include a constitution amendment. The Supreme Court rejected the argument and held that an amendment under Article 368 was enacted by parliament in the exercise of its constituent power, while the term “law” used in Article 13 referred to the exercise of the ordinary legislative power conferred on Parliament by the provisions of the constitution other than Article 368.
The next question that arises is whether the Act violates the basic structure of the Constitution? The answer to this can be attained by first explaining the concept of basic structure and then coming to the conclusion. The courts have not defined the concept of the basic structure in the Constitution, but have passed several judgments in the context of the same.
The concept was discussed in the very famous Kesavananda Bharati Case, wherein the petitioners had actually challenged the power and validity of Article 368 stating that it had no limited powers, which was acting as a contravening factor to the basic doctrine of the constitution. The court held that Article 368 has the power to amend the constitution, but should not contravene with the basic structure or framework of the constitution. Hence, the court stated the essential features of Basic Structure, which would include:
- Supremacy of the Constitution;
- Republican and democratic forms of the government;
- The sovereignty of the country;
- Republican and democratic forms of the government;
- Secular character of the Constitution
- Separation of powers between the Legislature, Executive, and Judiciary;
- Federal character of the Constitution;
- Rule of law;
- Individual freedoms secured to the citizens.
In the case of M.Nagaraj v. Union of India (2006), the Court held that the provisions under Article 15 and 16 apply to SC and ST and do not obliterate constitutional requirements such as 50 percent ceiling limit in the reservation, creamy layers rule, and post based roster subclassification between other backward classes, scheduled castes, and scheduled tribes, and these provisions are made for the welfare of the backward classes and hence do not alter the basic structure of the equality code. Thus, it can be stated that the doctrine of the basic structure acts as:
- A safety valve against the concepts of majoritarianism and authoritarianism, and
- As a custodian and safeguards the rights and liberties of the citizens, thereby maintaining the ideals of the Constitution and abiding by the concepts of Constitutionalism.
It can be hence conferred that the Act in no way violates the basic structure of the Constitution, as it is amended to provide upliftment to the economically backward classes, and is subdued under the basic rule of law and to the basic principles of the right to equality under Article 14 of the Constitution of India.
Relevance of the doctrine of Basic Structure in the reservation
Dr. B.R.Ambedkar and Gandhiji in the Poona Pact, 1932, stated the relevance of the reservation of the social backwardness of the classes, in order to ensure social justice and economic peace. The amendment to Article 15(4) was made in the year 1951 through the First Amendment Act, 1951 which empowered the states to make provisions for the advancement of the socially and educationally backward classes, and subsequently, Article 16(4) provides the directive for reservation for the backward classes of the society, if they are not adequately represented in services under the states. Thus, it can be hence stated that even though a reservation is not a guaranteed right under any of the articles, it is still guaranteed to the various sections and classes for their welfare and upliftment thereby abiding by the principles of Right to Equality under Article 14 of the Constitution.
How will the Court decide if the economic reservation violates the basic structure?
The Supreme Court has already explained the concept of the Doctrine of basic structure in its various precedents, but now the question arises as to how the courts will decide the violation of basic structure in respect of the economic reservation.
In the case of M.Nagaraj v. Union of India (2006), the court applied two tests to examine the affirmative action concerning reservation, which can also be applied to examine the decision concerning the economic reservation. The two tests that were applied in the case were:
The Width Test
The width test can be applied in order to check the violation done to the basic structure by examining and assessing the four issues i.e.:
- Violation of fifty percent canopy for all the reservations to the scheduled castes and scheduled tribes;
- Exclusion of the creamy layer;
- compelling reasons for which such reservation was made, such as the backwardness of the economically weaker sectors;
- That the administrative efficiency should not be destroyed due to the reservations made.
The Identity Test
The Supreme Court will use this test to determine whether the Constitution’s identity has changed as a result of the amendment.
Equality has always been the pillar of democracy and the courts have pronounced judgments on the principles of equality and rule of law. The equality permits reasonable classifications thereby expressing that the judgment should not be arbitrary and capricious. So, in the case of deciding the economic reservation, courts should consider and examine the equality code of the Constitution. The government should also specify the ‘compulsory reasons’ that go beyond the limit of fifty percent.
Economic criteria – an exclusive basis of reservation or a violation of the Basic Structure
The various provisions in the Constitution of India i.e Articles 14, 15, 16, 29, and 46 are introduced in the Constitution for the social and economic upliftment of the people of the backward classes and the minority class thereby securing a stable and stout lifestyle. The Constitution One Hundred and Third Amendment Act, 2019 would mitigate the hardships of the people who are left behind because of their economic backwardness. The contentions were raised upon the Act because the politicians and the debaters were of the opinion that the Act is violating the fundamental principles of the already introduced articles i.e, Article 14, 15, and 16 stated that the ‘economic backwardness’ should not be considered as a basis of amendment.
In order to determine the economic criteria for reservation, the reference can be made to the Indra Sawhney judgment. It has been cited by the Supreme Court in the case of Indra Sawhney v. Union of India,1993, that the backwardness of the class of the citizens cannot only be determined on the basis of the economic status, and it is not only aimed at economic upliftment and alleviation of poverty but also have been made to give a due share in the state power to the scheduled caste, scheduled tribes, and other backward classes.
Further, in the case of M. Nagraj v. Union of India, 2006, the Supreme Court held that in order to determine a case related to the reservations in promotions to the employees, three conditions should be imposed i.e., identification of backwardness, quantitative limitations such as violation of 50 percent ceiling for all reservations, exclusion of creamy layer.
Thus, it can be stated that Articles 14 and 15 are based on the principle of equality, thereby ensuring equality to the citizens on the basis of caste, class, or creed. So, it can be stated that the Constitution One Hundred and Third Amendment Act, 2019 has been for the citizens that have a weak economic background.
The amendments in the Constitution have been made and introduced to keep pace with the developments in society. The Constitutional Amendment Act, 2019 has also been introduced and enacted with the aim to ensure economic upliftment to the people and to provide benefits to the people who suffer from unemployment and who are unable to afford their educational expenses. The Act in no way conflicts with the other fundamental rights and with the other provisions of the Constitution. It can be stated that the government by amending the Act has provided equal rights and privileges to the citizens on the economic forefront and has in fact acceded to the provisions of the Constitution of India.
- Constitutional Law of India, 2018, Dr.J.N.Pandey.
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