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103rd Constitution Amendment Act

103rd Constitution Amendment Act

Why in news ?

  • The 103rd Constitution Amendment Act introduced  reservations for ‘economically weaker sections’ (EWS)  perceived as  unconstitutional by some experts.
  • However, the strongest constitutional challenge might not be to the amendment itself but to the manner in which governments implement it.

Challenges in the 103rd Constitution Amendment  Act

  • Article 15 stands for enabling the state to take special measures  in EWS category of admissions to educational institutions with maximum 10% reservations.
  • The amendment to Article 16 allows 10% reservations  for EWS in public employment and reservations for Scheduled Caste/Scheduled Tribes and Other Backward Classes.
  • Meanwhile , the amendment leaves the definition of ‘economically weaker sections’  determined  the state on the basis of ‘family income’ and other economic indicators.
  • Also critical to this amendment is the exclusion of SC/STs, OBCs and other beneficiary groups under Articles 15(4), 15(5) and 16(4)as beneficiaries of the 10% EWS reservation.

2) Indra Sawhney Case challenge in 103rd Constitution Amendment Act :

  • To start the constitutional examination of the recent amendment let us take the Supreme Court’s view on reservations based purely on economic criteria.
  • However , Eight of the nine judges in Indra Sawhney (November 1992) held that the Narasimha Rao government’s executive order (and not a constitutional amendment) providing for 10% reservations based purely on economic criteria was unconstitutional.
  • Their reasons included the position that income holdings cannot be the basis for exclusion from government jobs
  • Meanwhile , the Constitution was primarily concerned with addressing social backwardness.

3) Concerns against the Basic structure in 103rd Constitution Amendment Act: 

  • However, the decision in Indra Sawhney involved testing an executive order against existing constitutional provisions.
  • In the current situation, we  concerns the  constitutional amendment brought into force using the constituent power of Parliament.
  • However ,  we are not concerned with legislative and  executive power
  • In addition to , the amendment will be tested against the ‘basic structure’ and not the constitutional provisions existing before the amendment.
  • The pointed question is whether measures based purely on economic criteria violate the ‘basic structure’ of the Constitution?
  • Experts believe, it is a sufficient answer to say that ‘backwardness’ in the Constitution can only mean ‘social and educational backwardness’.
  • It is difficult to see an argument that measures purely on economic criteria are per se violative of the ‘basic structure’.
  • EWS reservations might not able to alleviate poverty but that is not really the nature of ‘basic structure’ enquiry.
  • Economic criteria (if seen as poverty) forms the basis for differential treatment by the state in many ways and it would be a stretch to suddenly see it as constitutionally suspect when it comes to ‘special measures’ and reservations in education and public employment.

4) Challenges to the 103rd Constitution Amendment Act : 

  • A challenge to the amendment may lie in the context of Article 16 by virtue of shifting the manner in which reservations can be provided in public employment.
  • Under Article 16(4), reservations for backward classes (SC/STs, OBCs) are dependent on beneficiary groups not being ‘adequately represented’ but that has been omitted in the newly inserted Article 16(6) for EWS.
  • The amendment through Article 16(6) ends up making it easier for the state to provide reservations in public employment for EWS than the requirements to provide reservations for ‘backward classes’ under Article 16(4).
  • Supreme Court might have its own views on this. On the one hand, it is confronted with the reality that ‘backward classes’ like SC/STs and OBCs are disadvantaged along multiple axes.
  • On the other, it is now far more difficult for the state to provide reservations to these groups compared to the EWS.
  • The response might well be that ‘representation’ is not the aim of EWS reservation and questions of ‘adequacy’ are relevant only in the context of representation claims like those of the backward classes under Article 16(4).

5) 50% ceiling breach in 103rd Constitution Amendment Act :

  • In many of the responses to the amendment, breaching the 50% ceiling on reservations cited as  greatest weakness.
  • It is hard to see the merit of that argument because the amendment by itself does not push the reservations beyond 50%.
  • While it might be a ground to challenge the subsequent legislative/executive actions, the amendment itself is secure from this challenge.
  • But even beyond this narrow technical response, the 50% ceiling argument is far from clear.
  • In Indra Sawhney, the majority of judges held that the 50% ceiling must be the general rule and a higher proportion may be possible in ‘extraordinary situations’.
  • Fundamentally this argument stems from an unresolved normative tension in Indra Sawhney.

6) Reservations concerns  in 103rd Constitution Amendment Act : 

  • While committing to the constitutional position that reservations are not an ‘exception’ but a ‘facet’ of equality, the majority in Indra Sawhney also invokes the idea of balancing the equality of opportunity of backward classes ‘against’ the right to equality of everyone else.
  • When governments implement the EWS reservations and push quotas beyond 50%, the Supreme Court will force to confront this normative tension.
  • If reservations further equality, what then are the justifications to limit it to 50% when the identified beneficiaries constitute significantly more than 50%?
  • The answer to that question might lie in Indra Sawhney’s position that the constitutional imagination is not one of ‘proportional representation’ but one of ‘adequate representation’.

7) implementation issues

  • While the constitutional amendment  might survive the ‘basic structure’ test and  the hardest test for governments will be the manner in which they give effect to the amendment.
  • The definition of ‘economically weaker sections’ will be a major hurdle because the political temptation will be to go as broad as possible and include large sections of citizens.
  • But broader the definition, greater will be the constitutional risk. For example, if beneficiaries are defined as all those with family income of less than ₹8 lakh per annum, it must necessarily fail constitutional scrutiny.
  • To justify that an individual ‘below poverty line’ and another with a family income of ₹8 lakh per annum belong to the same group for purposes of affirmative action will involve constitutional jugglery at an unprecedented level.

Reference : https://www.thehindu.com/opinion/lead/the-ambiguity-of-reservations-for-the-poor/article26053843.ece

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