The Supreme Court of India in a majority judgment on Monday upheld the validity of the Constitution’s 103rd Amendment Act 2019
The Supreme Court of India (SC) in a majority judgment on Monday upheld the validity of the Constitution’s 103rd Amendment Act 2019, which provides for 10 percent reservations of the Economically Weaker Section (EWS) in higher education and issues of public employment amongst the general category, and observed that it does not violate essential features of the Constitution. JI UU Lalit concurred with Justice S Ravindra Bhat and passed a dissent order saying excluding SCs, STs, and OBCs from this amendment is unconstitutional.
A five-judge Constitution bench in a 3:2 upheld the validity of the Constitution’s 103rd Amendment Act 2019, where three judges passed the verdict upholding the Act while CJI UU Lalit concurred with Justice S Ravindra Bhat and passed a dissent order.
Three of five judges of the constitution bench in the Supreme Court on Monday ruled that providing 10 percent reservation to economically weaker sections (EWS) persons in admissions and government jobs does not violate the basic structure and the equality code.
Justice Dinesh Maheshwari said the bench looked at three main points viz. whether the reservation is an instrument of representation of backward classes and whether economic criteria violate basic structure; whether the exclusion of categories in 15(4) from EWS violates equality code; whether inclusion violates 50% criteria.
Justice Maheshwari, pronouncing his verdict first, said reservation on economic criteria does not violate basic structure. The EWS reservation does not violate the equality code; the ceiling limit of 50% is not inflexible, he said.
The judge further said the 103rd amendment is an affirmative action for EWS by the parliament and it cannot be said to be an unreasonable classification.
Concurring with Justice Maheshwari, Justice Bela Trivedi said says exclusions of socially economically backward classes are not discriminatory. At the end of 75 years of our independence we shall revisit the reservation system, Justice Trivedi said.
The apex court had on September 27 reserved the verdict on the legal question of whether the EWS quota violated the basic structure of the Constitution after hearing a battery of senior lawyers, including the then Attorney General K K Venugopal and Solicitor General Tushar Mehta, in the marathon hearing that had lasted for six-and-half-day.
Academician Mohan Gopal had opened the arguments in the case before the bench on September 13 and opposed the EWS quota amendment by terming it as “deceitful and a backdoor attempt” to destroy the concept of reservation.
Tamil Nadu, represented by senior advocate Shekhar Naphade, had also opposed the EWS quota, saying the economic criteria cannot be the basis for classification and the top court will have to revisit the Indira Sawhney (Mandal) judgment if it decides to uphold this reservation.
On the other hand, the then attorney general and the solicitor general had vehemently defended the amendment, saying the reservation provided under it was different and had been given without disturbing the 50 percent quota meant for the socially and economically backward classes (SEBC).
Hence, the amended provision does not violate the basic structure of the Constitution, they had said.
The top court heard around 40 petitions and most of the pleas, including the lead one filed by ‘Janhit Abhiyan’ in 2019, challenged the validity of the Constitution Amendment (103rd) Act 2019.
The central government had filed some petitions seeking the transfer of pending cases, challenging the EWS quota law, from various high courts to the apex court for an authoritative pronouncement.
The bench, on September 8, had framed three broad issues for adjudication arising from the pleas challenging the Centre’s decision to grant 10 percent reservation to EWS in admissions and jobs.
It had said the three issues suggested by the then attorney general for the decision “broadly” covered all the aspects relating to the petitions on the constitutional validity of the decision to grant the reservation.
“Whether the 103rd Constitution amendment Act can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria,” read the first issue framed.
The second legal question was whether the constitutional amendment could be said to breach the basic structure by permitting the state to make special provisions concerning admissions to private unaided institutions.
“Whether the 103rd Constitution amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs, SCs/STs from the scope of EWS reservation,” the third issue, to be adjudicated upon by the bench, read.
The doctrine of basic structure was propounded by the top court in 1973 while deciding the Keshavananda Bharati case. It was held that Parliament could not amend every bit of the Constitution, and aspects such as rule of law, separation of powers, and judicial freedom formed part of the “basic structure” of the Constitution and hence, could not be amended.
The Centre, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for Economically Weaker Sections (EWS) reservation in admissions and public services.
Earlier, the Centre, in 2019, had also told the apex court that its law, granting a 10-per cent quota for Economically Weaker Sections, was brought in to promote “social equality” by providing “equal opportunities in higher education and employment to those who have been excluded by virtue of their economic status”.
The Lok Sabha and the Rajya Sabha cleared the bill on January 8 and 9 in 2019 respectively and it was then signed by then President Ram Nath Kovind. The EWS quota is over and above the existing 50 percent reservation to SCs, STs, and Other Backward Classes (OBCs).
History of Reservations Law in India
India’s reservation policy is the oldest in the world. Reservation is primarily given to all 4 groups: Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Economically Weaker Section, abbreviated as SC, ST, OBC, EWS respectively. Originally only SC and ST communities were eligible for reservation.
The reservation systems favouring certain castes and other communities existed before independence in several areas of British India. Demands for various forms of positive discrimination had been made, for example, in 1882 and 1891.
Rajarshi Shahu, the Maharaja of the princely state of Kolhapur, introduced reservations in favor of non-Brahmin and backward classes, much of which came into force in 1902. He provided free education to everyone and opened several hostels to make it easier for them to receive it. He also tried to ensure that people thus educated were suitably employed, and he appealed both for a class-free India and the abolition of untouchability. His 1902 measures created 50 percent reservation for backward communities.
In 1987, it was expanded to include OBCs after the execution of the Mandal Commission report. In 2019, the reservation was extended for the Economically Weaker Section within the General Category, however, all the categories mentioned receive different monetary values for their reservation: usually SC, and ST draws higher quota or benefits, then OBC, then EWS.
After the independence of India in 1947 there were some significant enterprises in favor of the STs, SCs and after the 1980s in favour of OBCs (Other Backward Castes) and in 2019 for poor in the general category.
A common form of caste discrimination in India was the practice of untouchability. SCs were the primary targets of the practice, which was banned by the new Constitution of India.
In 1954, the Ministry of Education suggested that 20 percent of places should be reserved for the SCs and STs in educational institutions with a provision to relax minimum qualifying marks for admission by 5 percent wherever required. In 1982, it was specified that 15 percent and 7.5 percent of vacancies in the public sector and government-aided educational institutes should be reserved for SC and ST candidates, respectively.
A significant change began in 1979 when the Mandal Commission or the Socially and Educationally Backward Classes (SEBC) Commission was established to assess the situation of the socially and educationally backward classes. The commission did not have accurate population figures for the OBCs and so used data from the 1931 census, thus estimating the group’s population at 52 percent.
In 1980, the commission’s report recommended that a reserved quota for OBCs of 27 percent should apply in respect of services and public sector bodies operated by the Union Government. It called for a similar change to admissions to institutes of higher education, except where states already had more generous requirements.[11] It was not until the 1990s that the recommendations were implemented in Union Government jobs. In 2019 the government announces the 10% reservation in educational institutions and government jobs for the economically weaker sections of the general category.
The Constitution of India states in article 15(4): “Nothing in [article 15] 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 of or for the Scheduled Castes and the Scheduled Tribes.”
Article 46 of the Constitution states that “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
The Supreme Court of India ruled in 1992 that reservations could not exceed 50 percent, anything above which it judged would violate equal access as guaranteed by the Constitution. It thus put a cap on reservations.
However, the recent amendment of the constitution exceeds 50% and also there are state laws that exceed this 50 percent limit and these are under litigation in the Supreme Court. For example, in the State of Tamil Nadu, the caste-based reservation stands at 69 percent and applies to about 87 percent of the population.