103RD Constitution Amendment Act, 2019

Equality presupposes equal treatment to all and equal protection of all people. But special privileges like those granted through the 103rd amendment and extra protection to certain class of people is against the policy of equality. The author emphasizes more on the same lines while giving supportive case laws and logical arguments.

10% Reservation for Economic Backward Class

The issue of reservation is one of the most debatable topics ranging from the common people to constitutional scholars. It was intended to realize by promise of equality enshrined in the Constitution under Part III. The principal aim of the reservation system is to enhance the social as well as educational status of underprivileged communities and thus ultimately improve their lives.  Also, law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts. The Chapter III of the Constitution guarantees the Right to Equality i.e. Article 14,15,16,17 and 18 and it can be said that right to equality is the cornerstone of the Indian democracy.[1]

Recently on the gone Saturday (Jan 12, 2019), the President Ramnath Kovind gave assent to the 10 percent reservation bill for Economic Weak Class, which was earlier passed by the Parliament on January 09. It sets the Constitution (One Hundred and Third Amendment) Act[2], 2019 which has been enforced from January 14, 2019. In the wider range of reservation, there were high demands of some new methods other than caste based reservations in order to narrow this gap and to increase them socially, as intended by the constituent assembly while forming it.

This amendment will amend both Section 15 as well as Section 16 by adding the clause for economically weaker sections of the society. The reservation will be in addition to the existing reservations and would be allowed up to the limit of 10 percent only. The amendment is reasoned as in addition to Article 15, Article 46 introduced that the State should promote the educational and economic interests of the weaker sections of the people and protects them from social injustice.

The criteria as to ascertain any person as economically weaker or not would be total annual income. Only those people whose annual income is below than eight lakhs INR and owning land less than five acre would be eligible. This concept of standard seems taken from the case of Indira Sawhney v. Union of India (Mandal Case)[3], whereby the Supreme Court laid down the limits of the state’s powers: it upheld the ceiling of 50 per cent quotas, emphasised the concept of “social backwardness”. Also, this judgment established the concept of qualitative exclusion, as we know “creamy layer” The concept of creamy layer was only applicable for OBCs. The creamy layer criteria was introduced at Rs 1 lakh in 1993, and revised to Rs 2.5 lakh in 2004, Rs 4.5 lakh in 2008 and Rs 6 lakh in 2013, but now the ceiling has been raised to ₹8 lakh (in Sep., 2017), which seems to be followed in this amendment too.

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However, the biggest issue which it raised was whether this act of government voids the Indira Sawhney’s judgment? To which arguments can be framed from both of the sides; but it seems more feasible concerning the ongoing competition and high unemployment rate.  In Akhil Bhartia Sohit Karamchari Sangh (Railway) v. Union of India[4], following the decision in the N.M. Thomas’s case[5], it was held that under Article 16(1), the state may classify groups or classes based on intelligible differentia, which seems to be taken place hereby through the amendment.

It is the first initiative of the Government whereby the system favors reservation in favour of not `classes’, but individuals. Earlier for obtain such privilege, individuals had to qualify for them, they must belong to those listed classes. Each and every class as well as social group has economically backward individuals which were going unnoticed from the umbrella of reservation. It is clearly unjust to accord people with special favors and privileges on the basis of caste, even in order to redress traditional caste discrimination.

Initially, when the Constituent Assembly was discussing about the reservation, it was concluded to be as “Provided further that such reservation shall be for 10 years, the position to be reconsidered at the end of the period.” However, the Parliament considered the later question and from time to time, extended the period of reservation through amendments legislature.[6] And ultimately, the policy of reservation which was planned as an adhoc policy for a period of ten years to resolve socio-economic difference, kept on extending and getting stretch after the end of every ten years.

Article 334 of the Constitution was introduced in the first place for the reservation of election seats and supposed to be ceased by 1960, but as there was to be completion of ten years period as discussed in the assembly, it somehow kept on revising. The latest one is the 95th Constitutional Amendment, 2010 which extended for the reservation up to 2020.

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It was shocking to see that a high majority of Members of both Rajya Sabha and Lok Sabha supported this bill, irrespective of their differences. However, many of the opposition leaders still argues it to be an initial step of the ruling Government in order to maintain their position by creating a winning streak in the upcoming 2019 election. The 2019 elections will decide which political party will form the Centre Government of the Country. It can be seen that on the name of reservation, the politically minded people are in some manner making vote banks.

But, yet the concept of reservation seems to violate the very spirit of democracy. This policy is opposite to the principle of equality. Equality presupposes equal treatment to all and equal protection of all people. But these granted special privileges and extra protection to certain class of people is against the policy of equality.

Also read When does ‘State’ include private organisations under Article 12?

[1]Pushpa v. Government, NCT of Delhi 2009 SCC OnLine Del 281.

[2]Registered No.DL—(N)04/0007/2003—19 (dt. January 12,2019)

Available at: http://egazette.nic.in/WriteReadData/2019/195175.pdf. Last Accessed on January 15, 2019

[3] AIR 1993 SC 477.

[4] (1981) 1 SCC 246.

[5]State Of Kerala & Anr vs N. M. Thomas & Ors, 1976 SCR (1) 906.

[6] Art.15 Clause 4 was added by the Constituent (First Amendment) Act 1951 (dt. June 18, 1951). Amendment of article 15.-To article 15 of the Constitution, the following clause shall be added:-

“(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.”