reservation

Introduction

Indian republic was formed in 1950 with a fourfold objective of securing to its citizen justice, liberty, equality and fraternity. Further, the citizens were guaranteed so many fundamental rights, through the Constitution, for a better standard of life. But without basic amenities to a decent life, the fundamental rights cannot be enjoyed in themselves. Land is still concentrated in the few hands, only 5% of India’s farmers control 32% land.[1] Industry too is concentrated in the hands of the top business houses. Social and economic power is still monopolised by small proportion of the people. Thus, in order to bring the economically weaker section of the society in the front, it is necessary to bring them under the garb of some economic policy. According to UNDP Report 2018 between 2005/2006 to 2015/2016 India has reduced multidimensional poverty from 54.7% to 27.5% of total people.[2]

In 1980, the Mandal Commission Report, followed the Supreme Court judgment in Indra Sawhney v. Union of India[3], allowed not more than 50 per cent of seats in the educational and service matter for the ST (Scheduled Tribes), SC (Scheduled Castes) and OBC (Other Backward Classes) who constituted around 70 per cent of the total population of India. This lead to a considerable progress in their status; according to the data released by Planning Commission between 2004-2005 and 2011-2012, more people among the deprived social classes — SCs, STs and OBCs — were brought above the poverty line, compared to other segments of society.[4] Therefore, it became an imperative for the legislature to frame policies for the upliftment of the economically weaker sections of the people who belonged to “other category” or “general category”. Keeping this in mind the legislature passed the Constitution (103rd Amendment) Act, 2019 (hereinafter referred as “Act”) to provide for 10 per cent reservation in the jobs and educational institutions to economically backward section in the general category.

It amended the fundamental rights under Part III of the Constitution to insert Articles 15(6) and 16(6) in the Constitution. The clauses read as follows:

1. Article 15(6): Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent 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 clauses mentioned in clauses (4) and (5) insofar as such special provisions relate to their admissions 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 disadvantages.

2. Article 16(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.

Whether the Act Violates the Basic Structure of Constitution

The Act is alleged to be violative of the basic structure of the Indian Constitution. But before delving into this question what is the basic structure doctrine has to be understood in a broader sense. Though every provision of the Constitution is essential but this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided it does not alter the basic foundation and structure of the Constitution. To roughly put, the doctrine speaks on behalf of constitutional essentialism and suggests that constitutional amendments cannot embrace repeal of such essentials which define the constitutional identity.[5]

The definition of basic structure was first discussed in 1973, by Justice J.R. Mudholkar in his dissent, in Sajjan Singh v. State of Rajasthan[6], in the following words:

56. It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?

It was only in 1973 that the concept surfaced in the text of the Supreme Court’s verdict. In Kesavananda Bharati v. State of Kerala[7], the basic foundation and structure of the Constitution were mentioned by Sikri, C.J. as:

(1) supremacy of the Constitution;

(2) separation of powers between the legislature, the executive and the judiciary;

(3) republican and the democratic form of Government;

(4) secular character of the Constitution;

(5) federal character of the Constitution. The other Judges mentioned another 3 basic features of the Constitution;

(6) the dignity of the individual secured by the various fundamental rights and the mandate to build a welfare State contained in the directive principles;

(7) the unity and integrity of the nation; and

(8) parliamentary system.

And since then it has been closely examined and worked out in several cases, namely, Indira Nehru Gandhi v. Raj Narain[8], Minerva Mills Ltd. v. Union of India[9], Waman Rao v. Union of India[10], Bhim Singhji v. Union of India.[11]

Since the decision of Kesavananda Bharati case[12] all the constitutional amendments are tested on the touchstone of the basic structure principle and the amendments that are found to be adversely affecting or destroys the wider principles of the Constitution such as democracy, secularism, equality or republicanism or one that changes the identity of the Constitution are declared bad. The M. Nagaraj v. Union of India[13] laid down the twin test, namely, the “width test” and the test of “identity” which has to be satisfied in order to ascertain the validity of an amendment. The width test was to ascertain the “width” of the effect any amendment might have on Constitution, and obliquely on the principles which are at its core. The width of effect decides the legitimate scope (width) of the amending powers and also contemplates all the probable ramifications of an amendment to see if the “basic structure” of the Constitution is under threat. The “identity test” on the other hand tests whether after the amendment the identity of the Constitution remains the same.

In deciding whether the Act violates the basic structure it has to be subjected to the two tests. Where the width test the bill has to be examined on the basis of four issues: (i) qualitative issues like 50% ceiling for all reservations taken together; (ii) exclusion of creamy layer or qualitative exclusion; (iii) compelling reasons such as backwardness of the economically weaker sections for whom this reservation has been made; and (iv) that overall administrative efficiency is not obliterated by the new reservation.[14] The identity test will have to be applied to ascertain if the identity or the basic characteristics of the Constitution changes, after the amendment. All of these issues have been discussed in the succeeding paragraphs.

It does not Violate the 50% Cap on Reservation

The Act has been opposed on the grounds that it is exceeding the maximum limit of reservation i.e. 50%. But this is not the first instance, several attempts have been made by people’s representatives to extend reservation to new (disadvantaged) groups but they were all thwarted by this rule. In Indra Sawhney case[15] the Court capped the caste-based reservation to 50% without even explaining how it was considered “reasonable”. But the rationale behind it was that “no provision of reservation or preference can be so vigorously pursued as to destroy the very concept of equality”.[16]

Before delving into the topic it is necessary to understand the purpose of reservation. The reservation system began with the good objective to uplift the socially deprived society in order to provide them an opportunity. If we follow this logic then the Act is a good piece of legislation because around 30% of the total population of India, which constitute of the general category[17], are bereft of any socio-economic reservation either in the matter of education or in the matter of employment. This is so because they are considered as a “socially, educationally, and economically advanced”.

Though the 50% reservation has been considered as the maximum limit but this rule is not written on stone and can be extended in extraordinary circumstances. The same has been discussed in Indra Sawhney case[18], by the Chief Justice M.N. Venkatachaliah in the following words:

810. 810. While 50 per cent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas, the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

The Bill makes it clear that the amendment relies upon the Article 46 to provide for the people of economically weaker sections of the society. But this view has been often chided upon by the Supreme Court. For instance, in State of Kerala v. N.M. Thomas[19], where the Supreme Court pointed out the same view: other “weaker sections” (mentioned in Article 46), in this context, means not every “backward class” but those dismally depressed categories comparable, economically and educationally, to Scheduled Castes and Scheduled Tribes.

This is in Consonance with the Creamy Layer Exclusion Principle.

The Indra Sawhney judgment referred to the “means test” which signifies the imposition of an income limit, for the purpose of excluding persons (from backward class) whose income is above the limit which was proposed as an economic indicator to adjudge them within the OBC category. There were some members of the designated backward classes that were highly advanced socially as well as economically and educationally. These persons were by no means backward and they were reaping all the benefits of reservation meant for the class. They were socially advanced enough to compete with forward class. These people formed the creamy layer for that backward class.

The rationale behind excluding these people was that the benefits of reservation are often snatched away by the top layers of that class. That the few seats reserved for the backward class are snatched away from them by the few fortunate among them. This wholly forfeits the aim of reservation as it snatches away seats from the unfortunate ones on “the same principle of merit on which the non-reserved seats are taken away by the top layers of society”. The 124th Amendment was in consonance with the same rationale. The unreserved posts in the jobs and educational institutions are often grabbed by the top creamy layers of the society, not because they are the enlightened ones but because the economically weaker counterparts of them cannot avail the same opportunities as them. This can be explained in a better manner by the example provided under Chapter VI of the Mandal Commission Report[20], that deals with “social justice, merit and privilege”. It provides an example of two boys — Lallu and Mohan. Lallu is a village boy belonging to a backward class occupying a low social position in the village caste hierarchy. He comes from a poor illiterate family and studies at a village school, where the level of instruction is woeful. On the other hand, Mohan comes from a fairly well-off middle class and educated family, attends one of the good public schools in the city, and has assistance at home besides the means of acquiring knowledge through television, radio, magazines and so on. Even though both Lallu and Mohan possess the same level of intelligence, Lallu can never compete with Mohan in any open competition because of the several environmental disadvantages suffered by him.

Economically Weaker Section of Society Comes under the Definition of Class

The Constitution makes it clear that the reservation can be for a caste or class only. Thus, before delving into the discussion about reservation on the economic basis solely, as given in the succeeding paragraphs, it has to be shown that the “economically weaker section” of the society constitutes a class in itself. If we go by the definition given by sociologist Max Weber, a class is a category of people who have a similar socio-economic status in relation to other classes in the society. The individuals and families which are classified as part of the same social class have similar life chances, prestige, style of life, attitudes, etc.

Further, the Black’s Law Dictionary[21], defines class as a group of persons or things, taken collectively, having certain qualities in common, and constituting a unit for certain purposes.

Thus, going by these definitions economically weaker sections do constitute a class of people because the Act lays down two major economic criteria for ascertaining the eligibility of the people; firstly, the person’s income should be less than 8 lakhs annually and secondly, if they own land it should be less than five acres. This categorises all the persons of same socio-economic status in the same group.

The Supreme Court of India in Ashoka Kumar Thakur v. Union of India[22], upholding the constitutional validity of Central Educational Institutions (Reservation in Admission) Act, 2006 stated that the identification of backward class cannot be done solely on caste. Other parameters are followed in identifying the backward class.

Most pertinent question here is that can a class be determined as backward class on the basis of occupation-cum-income without the reference to caste; this was affirmed in R. Chitralekha v. State of Mysore.[23] In many groups or classes the caste is not relevant at all, for example, agricultural labourers, rickshaw pullers/drivers, street-hawkers, etc. because they will always qualify as for being designated as backward class.

Economic Criteria can be the Sole Basis for Reservation

Various provisions of the Constitution like Articles 15, 29, 46 and 341 recognise the factual existence of backward classes in our country and which make a sincere attempt to promote the welfare of the weaker sections. This Act is a sincere attempt in this direction to mitigate the hardships of the people who are left behind because of their economic conditions.

One of the several contentions raised against the Act was that it formed reservation on the basis of economic criteria. But if we look into the Constitutional Assembly Debates relating to the first Amendment Act, 1951, pertaining to addition of Article 15(4) it is evident that the description of backwardness in the clause 4 of Article 15 was considered to be similar to that of clause (1) of Article 340. This was the reason, the word “economically” did not find a place in clause (4) of Article 15 though many members pointed out that in the identification of socially and educationally backward classes, economic backwardness could not be ignored.[24]

In K.C. Vasanth Kumar v. State of Karnataka[25], the Supreme Court discussed about the characteristics of backward classes. It was done on the request of Karnataka Government, who wanted the Court to lay down the guidelines for the discharge of the task of the Commission that was to be formed for this purpose. But all the Judges gave diverse opinion on this complex question. Though, on a closer look at the judgment it can be seen that all the Judges agreed upon one point that economic criteria is the most important factor for determining backward classes. Justice Chandarchud highlighted the two tests that should be conjunctively applied for identifying backward classes: one, they should be comparable to the Scheduled Caste and Scheduled Tribe in the matter of their backwardness; and two, they should satisfy the means test, that is to say, the test of economic backwardness, laid down by the State Government in the context of the prevailing economic backwardness.[26] Similarly, Desai J., held that the only criterion which can be realistically devised is one of the economic backwardness.[27]

In Indra Sawhney case[28], Justice R. Sahai observed that the individuals among the collectivity or the group, who may have achieved a social status or economic affluence, should be disentitled to claim reservation. Therefore time and again it can be seen, either through judicial pronouncements or by referring to the Constitutional Assembly Debates, which corroborate the same fact that reservations were meant to uplift the people economically. This is further elucidated by referring to the following excerpts from the first two Backward Classes Commissions:

The First Backward Classes Commission (Kalelkar Commission)

The Central Government appointed a Backward Classes Commission under Article 340 of the Constitution 29-1-1953. It was required “to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove difficulties and to improve their conditions”. The Chairman of the Commission, however, after signing the report pleaded the President for rejection of it. This was so because he was of the opinion that the reservations and remedies recommended on the basis of caste should be eschewed altogether. Then alone, he said, would it be possible to help the extremely poor and deserving members of all communities.[29]

The Second Backward Classes Commission (Mandal Commission)

Chapter VII titled Social Justice, Constitution and Law talks about the post-independence times when nearly 90 per cent of higher posts under the State and seats in the medical and engineering colleges were filled by the higher castes. Therefore, in post-India the remedy to this situation was taken with the incorporation of clause (4) of Article 16.

Role of Judiciary in the Matters Related with Government Policies

The State, in designing its policies, should ensure that the vital principle of equality is not trampled upon. Petition has been filed before the Supreme Court to challenge the Act on the basis of violation of constitutional provisions however it is none of the concern of the Court whether the legislation in its opinion is wise or unwise.[30] Judicial restraint is a theory of judicial interpretation that encourages Judges to limit the exercise of their own power. It asserts that Judges should hesitate to strike down laws unless they are obviously unconstitutional. Judicially-restrained Judges respect stare decisis, the principle of upholding established precedent handed down by past Judges.

 Justice A.S. Anand, the former Chief Justice of India observed that and further in Asif Hameed v. State of J&K[31], the Indian Supreme Court observed:

Judicial restraint is particularly important for the Supreme Court for two reasons:

1. Of the three organs of the State, only one, the judiciary is empowered to declare the limits of jurisdiction of all three organs. This great power must therefore be exercised by the judiciary with the utmost humility and self-restraint.
2. The errors of the lower courts can be corrected by the higher courts, but there is none above the Supreme Court to correct its errors.

In State of Bombay v. F.N. Balsara[32], the principle that presumption was always in favour of constitutionality of an enactment was laid down. The State is obliged to act in a fair, reasonable and equitable manner[33], a statute cannot be declared invalid on the ground that it contents vague or uncertain or ambiguous[34], courts presume in favour of constitutionality of the statute because there is always a presumption that the legislature understands and correctly appreciates the need of its own people[35], every legislation enacted by Parliament or State Legislature carries with it a presumption of constitutionality. This is founded on the premise that the legislature, being a representative body of the people and accountable to them is aware of their needs and acts in their best interest within the confines of the Constitution.

In Shri Ram Krishna Dalmia v. S.R. Tendolkar[36], in the following words:

1. that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and
2. that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.

Ensuring Economic Justice through Directive Principle of State Policy

Articles 38 and 39 of the Indian Constitution which mandates State to secure a social order for the promotion of welfare of the people Article 39 of the Indian Constitution which mandates certain principles of policy to be followed by State and Article 46 of the Indian Constitution which provides promotion of educational and economic interests of Scheduled Castes, Schedule Tribes and other weaker sections. Articles 38, 39 and 46 mandate the State, as its economic policy, to provide socio-economic justice to minimise inequalities in income and in opportunities and status and further stated that State is under the obligation to work for the welfare of the society and to make socio-economic justice a reality, meaningful and fruitful so as to make the life worth living with dignity.[37]

Though the directive principles are not enforceable yet the Court should make a real attempt at harmonising and reconciling the directive principles and the fundamental rights and any collision between the two should be avoided as far as possible.[38] The concept of social justice consists of diverse principles essential for the orderly growth and development of personality of every citizen. The Constitution, therefore mandates, the State to accord justice to all members of the society in all facets of human activity.[39]

Conclusion

French economist Thomas Piketty, who wrote Capital in the 21st Century, which looks at wealth concentration and distribution since the 1700s, suggested that India should consider income-based reservations to tackle inequality.[40] The quota aims to cover nearly 190 million people from unreserved category. We have seen political parties making promises during election campaign and inserting the same in their election manifesto to provide reservations, thereby all the weaker class has remained vote bank to the political parties. This time Government has taken a bold step keeping aside the fact that the Government wants to allure the unreserved economic weaker class. The Act will provide benefits to the unreserved poor class people who are unable to afford their education expenses and are unemployed. The ratio behind caste-based reservation is a long history of untouchability and that criteria should not be changed, it should remain caste based to minimise the social inequality but at the same time it is a good move by Government to provide reservation to economically unreserved class to minimise the economic inequality. It is in consonance with the Preamble of Indian Constitution which provides social and economic justice elongated in the fundamental rights and directive principles.[41] Further, if seen closely it is just the implementation of the idea of the Constitution-makers who felt that the remedy to backwardness was economic basis but to make reservation a cumulative thing added the word socially. As “socially” is a much wider word including many things and certainly including economically.[42] Though the Act is a commendable step towards bringing economic equality, but reservations in jobs and education are not sustainable game changers. They can act only as interim measures, till the benefits of high growth trickle down, private sector jobs expand in numbers and quality and targeted public services reduce comprehensive inequality, using quotas to enable access to quality education and to government jobs which remain islands of security, dignity and relatively high income versus agriculture or unorganised manufacturing and services is a defensible strategy, responsive to our social and economic context.[43]

†  IVth semester student, BA LLB, National University of Study and Research in Law, Ranchi.

††  VIIIth semester student, BA LLB, National University of Study and Research in Law, Ranchi.

[1]  Sumit Chaturvedi, Land Reforms Fail, Only 5% of India’s Farmers Control 32% Land, Reddif.com (18-5-2016, 10:32 IST), available at <https://www.rediff.com/business/special/special-land-reforms-fail-only-5-of-indias-farmers-control-32-land/20160518.htm> (accessed on 22-1-2019).

[2]  UNDP India Report 2018 Multidimensional Poverty Index, available at <http://www.in.undp. org/content/india/en/home/sustainable> (accessed on 22-1-2019).

[3]  1992 Supp (3) SCC 217.

[4]  Somesh Jha, Fewer Poor among SC, ST, OBC, Business Standard (14-03-2014, 02:02 IST), available at <https://www.business-standard.com/article/economy-policy/fewer-poor-among -sc-st-obc-114031301232_1.html>.

[5]  Satya Prateek, Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional Transformations and the Future of Political Progress in India, 1 NUJS L. Rev. 420 (2008).

[6]  AIR 1965 SC 845

[7]  (1973) 4 SCC 225

[8]  1975 Supp SCC 1

[9]  (1980) 2 SCC 591

[10]  (1981) 2 SCC 362

[11]  (1981) 1 SCC 166

[12]  (1973) 4 SCC 225

[13]  (2006) 8 SCC 212

[14]  Faizan Mustafa, An Expert Explains: New Quota and Basic Structure, The Indian Express (15-1-2019, 8:32:25 a.m.), available at <https://indianexpress.com/article/explained/10-percent-quota-reservation-economically-weaker-section-supreme-court-5538470/>

[15]  1992 Supp (3) SCC 217

[16]  Ibid

[17]  Roshan Kishore, Quota for Economically Weak in General Category could Benefit 190 MN, Hindustan Times, (7-1-2019, 23:39 IST), <https://www.hindustantimes.com/india-news/quota-for-economically-weak-in-general-category-could-benefit>

[18]  1992 Supp (3) SCC 217, 735

[19]  (1976) 2 SCC 310

[20]  Second Backward Class Commission Report (Mandal Commission Report, 1980)

[21]  Black’s Law Dictionary, (9th Edn., 2009)

[22]  (2008) 6 SCC 1

[23]  AIR 1964 SC 1823

[24]  1st Backward Classes Commission Report, Second Part (1955)

[25]  1985 Supp SCC 714

[26]  Ibid.

[27]  Id., at 1506

[28]  1992 Supp (3) SCC 217

[29]  Ananthakrishnan G., When Supreme Court Said Poverty Can’t Be Test of Backwardness, The Indian Express (8-1-2019, 6:58:07), <https://indianexpress.com/article/india/when-supreme-court-said-poverty-cant-be-test-of-backwardness>.

[30]  Mark Netto v. State of Kerala, (1979) 1 SCC 23

[31]  Asif Hameed v. State of J&K, 1989 Supp (2) SCC 364

[32]  AIR 1951 SC 318

[33]  Ajay Kumar v. Chandigarh Admn., 1982 SCC OnLine P&H 256; Punjab Engg. College v. Sanjay Gulati, (1983) 3 SCC 517

[34]  Nand Lal v. State of Haryana, 1980 Supp SCC 574; A.K. Roy v. Union of India, (1982) 1 SCC 271

[35]  Govt. of A.P. v. P. Laxmi Devi, (2008) 4 SCC 720; State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201; State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312

[36]  AIR 1958 SC 538

[37]  Ahmedabad Municipal Corpn. v. Nawab Khan, (1997) 11 SCC 121

[38]  State of T.N. v. L. Abu Kavur Bai, (1984) 1 SCC 515: AIR 1984 SC 326

[39]  Air India Statutory Corpn. v. United Labour Union, (1997) 9 SCC 377

[40] Thomas Piketty, Consider Income-Based Reservations in India, 6-12-2015, available at <https://indianexpress.com/article/business/business-others/consider-income-based-reservations-in-india-thomas-piketty/> (accessed on 20-1-2019)

[41]  M.P. Jain, Indian Constitutional Law, LexisNexis, 12 (7th Edn., 2016)

[42]  Parliamentary Debates, Vol. XII-13(Part II) at 9830

[43]  Sanjeev Ahluwalia, After EWS Quota, Only 10 Per Cent of India is Left Out, The Asian ( 16-1-2019, 12:20 a.m. IST),<http://www.asianage.com/opinion/columnists/160119/after-ews-quota-only-10-per-cent-of-india-is-left-out.html> (accessed on 15-2-2019)

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