Student, Master of Law in Constitutional Law, School of Law, Christ Deemed to be University, Bengaluru
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It can be said that, India is the only socialist democracy in the world that has made explicit constitutional and legal provisions for compensatory discrimination, popularly known as reservations, for the advancement of the historically depressed and socially and educationally backward sections of the society. On one hand, there is provisions of equality in the Indian Constitution under Article 14 and on the other hand, there are provisions that would bring about positive discrimination in favour of socially backward section of the society.
What can be pertinently noted is that India has been striving to strike a balance between its commitment to an overarching conception of equality that is enshrined in the Article 14 of the Constitution, which is in terms of basic freedoms and the imperatives of compensatory discrimination in favour of specified castes and communities. For those who thought that these two objectives are incompatible, India proved that such a course is not only feasible, but also something that strengthens the democratic process itself. Over the years, it has evolved into a complex and elaborate scheme of reservations.
Reservation, which can be called as the compensatory discrimination, sounded as a way to set right historical wrongs that were committed against the socially and educationally backward people of the country for centuries. It was more in the nature of compensation rather than in the nature of aid. The Supreme Court has time and again reiterated that the reservation is a social justice programme and not a poverty alleviation scheme.
However, the Constitution (One Hundred and Third) Amendment Act of 2019 has brought in a new facet (not considering the creamy layer test) of reservation in the country – it has introduced reservation for economically weaker section of the society which poses questions of social as well as constitutional validity. This article briefly examines the constitutional and legal validity of the said Amendment to the Constitution in the light of existing constitutional jurisprudence in the country.
The Constitution of India provides for positive discrimination for the purpose of education as well as public employment in favour of three categories of people of India – (a) Socially and Economically backward classes of citizens (b) Scheduled class (c) Scheduled Tribes . Through this, a percentage of seats has been reserved for the socially backward class of people categorised as OBCs or BCs, Scheduled Caste and Schedule Tribes in the education sector and public employment.
The Constitution makers deliberately inserted the element of equality to the Constitution of India in order to ensure equal treatment under Article 14-18 of the Constitution to all irrespective of their caste, religion, race, language and place of birth. The makers of the Constitution of India also thought that the meaning of equality based upon individual achievement was too hypocritical in our caste-riffed society where group identification had been historically used for the purpose of discrimination and separation. As a result, they adopted, inter alia a policy of ‘preferential treatment’ in favour of certain weaker section of the society to offset the effects of inherited inequalities and historical injustice.
The drafters of the Constitution were mindful about the fact that, post-independence, the historical wrongs that has been committed against the vast section of Indians for centuries on the basis of their caste cannot be undone. On that view, Article 16(4) was inserted and for the rights of women and children, Article 15 (3) of the Constitution which enables the State to ‘positively discriminate’ in favour of women and children was inserted. Both these Articles is in the nature of an exception to the general rule of equality and non-discrimination enshrined under Articles 14, 15 (1) & (2).
When the Constituent Assembly was debating Article 15 (3) of the Constitution, there were several amendments moved by members to also add backward classes to the class of persons in whose favour the State can positively discriminate. However, the constituent Assembly was of the view that the special provisions enacted for the backward classes in Article 16 (4) was sufficient.
In fact, while discussing the “special provisions” in favour of socially backward classes under Article 16(4), many members of the Constituent Assembly argued that such provision for positive discrimination would offend the equality clause enshrined in Article 14, 15(1) & (2). During one such debate, Dr. B. R. Ambedkar, on a reply to the question posed by T. T. Krishnamachari as to whether the term backward class referred to in Article 16(4) was based on economic status or caste, said that:
“the Drafting Committee had to produce a formula which would reconcile these three points of view, firstly, that there shall be equality of opportunity, secondly that there shall be réservations in favour of certain communities winch have not So far have had a `proper look-in’ so to say into the administration. If honorable Members will bear these facts in mind–the three principles, we had to reconcile,–they will see that no better formula could be produced than the one that is embodied in sub-clause (3) of article 10 (now Article 16(3)) of the Constitution; they will find that the view of those who believe and hold that there shall be equality of opportunity, has been embodied in sub-clause (1) of Article 10. It is a generic principle. At the same time, as I said, we had to reconcile this formula with the demand made by certain communities that the administration which has now–for historical reasons–been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services.”
From this, it is quite clear that the intention of the makers of the Constitution has always been to address the issue of caste and not that of class.
Further, post Champakam Dorairajan v. State of Madras, the need for enabling ‘positive discrimination’ in favour of the socially backward classes under Article 15 was realised. That is, it was deliberated that, other than in the matters of employment, it is also required to make affirmative actions in favour of socially backward classes. Hence, the Constitution (First Amendment) Act of 1951 was passed and the very first amendment made to the Constitution was to insert Article 15(4) which reads as under:
“(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”
It is not economic but social backwardness from which these castes have historically suffered warrants reservations under the Constitutional scheme.
Contrary to the intentions of the Constituent Assembly in framing the reservation policy, the Government of India enacted the Constitution (One Hundred and Third) Amendment Act, 2019 to enable the State to make reservations based on the economic criteria alone. The Government of India in a Cabinet meeting on 07.01.2019 took a decision to provide 10% reservation for the “economically weaker sections” in the general category i.e., the category other than OBC, SC and ST. The very next day, the Constitution (One Hundred and Third) Amendment Act, 2019 was introduced in the Lok Sabha on 08.01.2019.
The said Bill was then rushed through the Lok Sabha and subsequently on 09.01.2019 the Constitution (One Hundred and Third) Amendment Act, 2019 was passed in Rajya Sabha as well. The essence of the said Amendment to the Constitution is that clause (6) has been inserted in Article 15 and 16 of the Constitution. Clause (6) inserted in the Article 15 reads as follows:
‘(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, –
- any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
- 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 purpose of this article and article 16, “economically weaker sections” shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’
The government of India, as a socialist state, is playing a large role in the economic life in India and thus has a substantial effect on Indian social evolution, in particular, on caste and tribal loyalties. As a result, a social structure that would otherwise have become less important has been maintained and even expanded.
There were several arguments that came about in favour of the said Amendment to the Constitution. Few of the arguments in favour of economic criteria-based reservations can be founded on following two grounds – (a) it can be said that the state accepting caste as the basis for backwardness legitimises the caste system which in turn contradicts secular principles. (b) the traditional caste system ceased to exist. However, these arguments failed to take into consideration historical context of reservation which tilt the balance against secular forces.
Keeping aside the socio-economic impact of the reservation based on the economic reservation, the constitutional validity of the economic reservation scheme brought about by the Central Government remains questionable. In the following section, the author discusses the grounds on which the Constitution (One Hundred and Third Amendment) Act, 2019 can be challenged.
First of all, the Constitution (One Hundred and Third Amendment) Act of 2019 is unconstitutional, violates the basic structure of the Constitution, and is ultra vires of Article 15 and 16 of the Constitution.
It is recognized by the Apex Court in numerous decisions that reservation is essentially social justice programmes that are established in order to uplift sections of society which did not have access to education or employment and not “poverty alleviation scheme”. In consequence, these backward communities, including SCs & STs do not have representation in the services of the State or in upper echelons of society.
Thus, it is clear that, the exception enshrined in Article 14 of the Constitution in the nature of equality clause is only available to those communities which were disadvantaged for centuries in the name of their birth. Economic criteria has been however used as a filter to exclude the ‘creamy layer’ i.e. persons belong to the backward classes but who are economically advanced.
Hence, application of economic criteria solely is not contemplated as an exception to the rule of equality and consequently to provide reservation solely on economic criteria offends the basic structure of the Constitution as enunciated in Kesavananda Bharati.
While Article 14 of the Constitution permits intelligible differentia, ‘economically weaker section’ cannot be construed as a class apart and cannot be considered as permissible classification as such. Also, there is this question of whether the said classification has any rationale to the object sought to be achieved by the Constitution in prescribing reservation. Further, the Constitution (One Hundred and Third) Amendment Act 2019 which confers arbitrary, uncharted and unrealised powers on the State to define economic weaker section facilitates potential legislation with substantive arbitrariness is ultra vires of basic structure of Constitution.
In M Nagaraj v. Union of India, it has been made adequately clear by the Supreme Court that even if the State has compelling reasons, the Site will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling limit of 50%. The said amendment to the Constitution enables the reservation to go more than the said 50% ceiling limit and the same is also unconstitutional and bad at law.
The Supreme Court in Indira Sawhney v. Union of India, has clearly enunciated that:
“application of economic criterion will not bring the desired effect for the advancement and improvement of the backward classes who have suffered deprivation from the time immemorial.”
Thus, the Supreme Court has clearly clarified that the ‘economic status’ cannot be the sole basis of reservation. It is pertinent to note that when the ‘means test’ is analyzed in depth so as to explore its merits and demerits, one would come to an inevitable conclusion that it is not a decisive test but on the other hand it will serve as a protective umbrella for many to get into this segregated section by adopting all kinds of illegal and unethical methods.
Further, this test will be totally unworkable and impracticable in the determination of “getting somebody in and getting somebody out” from among the same identified SEBCs. If this ‘means test’ argument is accepted and put into action by scanning the identified SEBCs by applying a super-imposition test, the very object and purpose of reservation, intended for the socially backward class would reach only a cul-de-sac and the identified SEBCs would be left in a maze. In my considered opinion, it will be a futile exercise for the courts to find out the reasons in support of the division between and among the group of SEBCs and make rule therefor
It should also be considered that the said Amendment to the Constitution is only in the nature of enabling provisions and they confer upon the State a very wide discretion to categories the economically weaker sections of the society. Conferring such wide, unfettered and unguided discretion to the States, that too, by way of Constitution amendments, offends the basic structure, as it would lead to different States adopting different standards. This will lead to creation of different classes of persons in different States and such classification would not be based on any reasonable criteria and would not have nexus to the object sought to be achieved.
When confronted with the heterogeneity within a caste the champions of caste politics argue that it is not economic but social backwardness from which these castes have historically suffered that warrants reservations. It is true that birth should not decide one’s backwardness. But it is also equally true that in the given economic and political structure, one’s birth in a particular family by and large determines one’s life chances.
The so-called upper castes have not only enjoyed control over resources for centuries but they also dominated the culture of the masses. They provided ideology and spread it through various devices among the exploited classes of the society. It takes time, even if we assume that the upper caste and classes are generous and have become secular, for the lower castes to get liberated from the Brahminical ideological hegemony.
 Article 15 & 16 of the Constitution of India
Basavaraju, C. “RESERVATION UNDER THE CONSTITUTION OF INDIA: ISSUES AND PERSPECTIVES.” Journal of the Indian Law Institute, vol. 51, no. 2, 2009, pp. 267–274. JSTOR, http://www.jstor.org/stable/43953443.
Constituent Aassembly Of Inida Debates (Proceedings)- Volume VII
 AIR 1951 SC 226 : In this matter the government of Madras has reserved seats in state medical and engineering colleges for different communities in certain proportions on the basis of religion, race and caste. This was challenged before the Madras High Court, consequently before the Supreme Court as unconstitutional. The State took recourse to Article 46 of the Constitution. However, the Supreme Court struck down the order of the State as being violative of the equality guaranteed under Article 14 and 15 of the Constitution and observed that Directive Principle cannot override the guaranteed fundamental rights.
Osborne, Evan. “Culture, Development, and Government: Reservations in India.” Economic Development and Cultural Change, vol. 49, no. 3, 2001, pp. 659–685. JSTOR, http://www.jstor.org/stable/10.1086/452520.
 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
 (2006) 8 SCC 212
 1992 (Supp.) 3 SCC 217
 Indira Sawhney v. Union of India 1992 (Supp.) 3 SCC 217