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It has been a year to The Constitution (103rd Amendment) Act, 2019. The Amendment was brought to Article 15 and 16 of the Constitution of India to enable reservation for economically weaker sections (“EWS”) of the Indian society. Prior to the said Amendment, the Constitution enshrined reservation only on the basis of castes which have been historically oppressed and discriminated against, such as the SCs, STs and the OBCs.
The Parliament simultaneously passed the Bill providing 10% reservation of seats for the EWS in the ‘general category’, in higher education institutions and in government jobs. This Bill was left for the States to adopt at their Legislative Assemblies and hence, was not forced upon by the Central Government on the respective State Governments.
An individual qualifies to take benefit of the reservation only when he is not eligible for any other form of reservation. This Bill identifies an individual to belong to EWS if –
- His annual income is below Rs. 8 Lakhs,
- He owns agricultural land of less than 5 Hectares,
- He owns house smaller than 1000 sq. ft.,
- He owns residential plots below 109 yards in a notified municipality,
- He owns residential plots below 209 yards in a non-notified municipality.
This article deliberates upon the need and the constitutional validity of the said reservation.
Stated reasons for introduction of this reservation:
The Parliament reasons ‘social justice and equality’ for introduction of this reservation.
Prior to 2019, reservation was provided on the basis of castes and not economic positioning; due to which the resource-less of the general category had their differences with the resource-full of the castes who took advantage of the reservation provided to them.
This resulted in various sections of the society demanding their own share of reservation, like the Marathas protesting for reservation in the Maharashtra state educational institutions. Similar actions were observed in the States of Gujarat, Haryana and Rajasthan.
The State Legislators, under the pressure, did make the reservation laws. However, the laws were annulled, on scrutiny of the respective High Courts.
The Constitution via its Preamble guarantees justice – social, economic and political. Furthermore, Article 14 read with 15 and 16, promises not only equality but equity as well. The idea is to accept that unequals cannot be treated equally. Article 46, obligates the State to promote ‘educational and economic’ interest of the ‘weaker sections’ of the society to do social justice.
After the annulment of the laws introduced by the State Governments, the 103rd Amendment was brought to the Constitution to include reservations not only based upon castes, but also upon economic positioning. Hence, sanctioning the reservation Bill by the Constitution itself and providing by law, upliftment to almost 200 million individuals belonging to EWS.
The Supreme Court of India has not yet decided in finality the constitutional validity of the EWS reservation law. However, in pursuance of multiple cases against the law, the SC decided to pass an interim order. The order being in favour of the law, did not stay the implementation of the reservation by the States.
Why constitutional validity of the reservation is a major issue before the SC is because in 1993, the SC decided the case of Indra Sawhney v. Union of India, wherein it held that reservation under Article 15 and 16 of the Constitution cannot nullify the basic fundamental right to equality under Article 14. Hence, ‘total’ reservation cannot exceed the ceiling of 50%.
Basic Structure constituents, Article 15 and 16, do not discuss economic positioning as an exception to Article 14. Therefore, reservation based exclusively upon the economic positioning stands invalid in law as per the 1993 case precedent.
Multiple cases against the EWS reservation have been filed as it violates crucial precedents. If the States adopt the reservation, the ceiling of 50% stands broken and further, the constitutional amendment made to Articles 15 and 16, alter the basic structure of the Constitution, which is against the law as laid down in Keshavananda Bharti v. State of Kerala.
The Ministry of Social Justice and Empowerment of the Government of India, represented by Sr. Adv. Venugopal, argued in the SC against the precedents to put forth that the reservation is backed by the Constitutional Amendment, duly passed by the Legislature.
Furthermore, the 50% ceiling laid down in the 1993 case is applicable only on reservations based upon castes and not a mandate w.r.t. reservations based upon economic positioning. The EWS reservation is for the uplift-ment of all and valid as per Article 14, 15, 16 and 46 of the Constitution.
It shall now be interesting to note the considerations of the Supreme Court w.r.t. deciding the validity of the said EWS reservation law in future.
A Public Interest Litigation at SC, filed by Adv. GS Mani, questioned the Central Government w.r.t. non-enforcement of the said reservation in the states of Karnataka and Tamil Nadu. In pursuance of the same, the Government submitted an affidavit w.r.t. the implementation procedure of the said reservation law.
The Government stated that the reservation law is passed by the Parliament and is not subject to approval of half of total number of the States. However, the said reservation has to be enforced via adoption by the State Legislations. Once done so, the reservation becomes available to the residents of the State.
This procedure has been laid down because the Central Government has no role to play in state government run educational institutions and government jobs. It can neither compel nor can administer the implementation of the said law on its own.
As of now, the States of Gujarat, Jharkhand, Uttar Pradesh, Rajasthan and Madhya Pradesh have already passed the EWS reservation. The total percentage of reservation in Rajasthan and Madhya Pradesh today is 64 and 70, respectively. Given the crossing of 50% ceiling by adoption, other States await the final decision of the SC, before investing and implementing the said law.
The EWS reservation law faces three major hurdles – firstly, its implementation, given there are more than 80% of the population qualifying to benefit from the same; secondly, its non-compliance with the precedents, and lastly, the lack of representation of the EWS.
However, the reasons for implementation of the said law can be summarized as to uphold the Preamble of the Constitution, i.e., to secure to all its citizens social and economic justice. Given the same, the constitutional validity of the law remains to be an issue to be decided upon by the Supreme Court of India.
Author: Harshita Kapoor from Symbiosis Law School, Pune.
Editor: Farsana Sadiq from Faculty of Law, Jamia Millia Islamia.