The Supreme Court, in a recent judgment, upheld the constitutional validity of the 103rd Amendment to the Constitution, which provided for a 10% reservation in educational institutions and employment for Economically Weaker Sections (EWS). The decision was made by a Constitutional Court composed of five judges. A majority of three justices upheld it while two, although accepting the principle of economic reserve, ruled it unconstitutional because other marginalized communities were excluded from said benefit.
By said modification of article 15, a new clause has been added. It has been stated that any special provision for admission to educational institutions, including private ones, can be made in favor of economically weaker sections and SAP citizens should be as notified by the State from time to time on the basis of “family income” and other indicators of “economic disadvantage”. Similarly, in Article 16, special provision has been made for appointment bookings in favor of citizens Significantly, the amendment itself provided that a maximum of 10% would be added to the existing reserve, therefore the existing reserve – 27% for CBOs, 15% for SCs, 7 .5% in the case of STs and 4% in the case of people with a baseline disability was not affected at all.
The amendment, when considered and passed in both Houses of Parliament, met with rare unanimity. I too had the privilege of speaking as Union Justice Minister. However, the most notable part of the debate were the powerful voices of prominent reserved category leaders like Hukmdev Yadav in the lok sabha and the late Ram Vilas Paswan in the Rajya Sabha who was a moving reminder of how important leaders in the non-reserved category have always championed the cause of empowering the OBC, SC, and ST communities. They further stated that their empowerment has accelerated and therefore it is also their responsibility to advocate for the rights of the marginalized and economically weaker sections. It was indeed a moving moment.
The Narendra Modi government, as a strong supporter of inclusive development, first introduced this amendment to fulfill the mandate of Article 46 of the Constitution. It enjoins the State to promote with particular care the educational and economic interests of the weaker strata of society, in particular SCs and STs, and to protect them from social injustice. This constitutional mandate was clearly applicable to all weaker sections. Remarkably, the unanimity in Parliament on this historic measure was reflected across the country, causing neither bitterness nor discord.
The amendment was challenged and the Constitutional Court notably formulated three questions: first, does the reserve structured solely on economic criteria violate the basic structure of the Constitution? Second, whether the exclusion of classes covered by the reservation benefit for OBCs, SCs, and STs as economically weaker sections violates the equality clause and the basic structure doctrine. Third, whether the reservation for EWS citizens up to 10%, exceeding the 50% cap, is unconstitutional.
Significantly, the majority argued that in the final analysis, the question of how the demands of socio-economic justice should be balanced in our constitutional system and whether or not constitutional amendment should be made is essentially within the domain of Parliament. The Court cannot alter this by “questioning” the propriety of a particular provision.
The Court rightly quoted former Chief Justice of India PB Gajendragadkar: “These experiments represent in a sense an adventurous journey of discovery into ethically unknown regions, willing to take risks but determined to win the ultimate prize. socio-economic justice”. The Court further held that the state’s effort to provide inclusive socio-economic justice cannot be a competition of claims for affirmative action based on disadvantage, such that a disadvantaged section would seek the denial of affirmative action for another disadvantaged section. The Court further held that the 50% limit in very exceptional circumstances can be relaxed for good and sufficient reasons, which are apparent from the 103rd Amendment. He further held that the change was made to the relevant fundamental rights clauses themselves, which cannot be changed lightly.
The minority judgment held that the amendment creates an arbitrary classification, depriving the poorer sections of society of the benefit of an additional 10% reserve and, therefore, it violates the equality code which is part of the basic structure. The minority opinion, however, clarified that economic criteria are allowed for access to public goods under Article 15, but not in the case of Article 16 for public employment.
It is respectfully submitted that the majority view encapsulates the constitutional ethos of equality and empowerment in the correct perspective. The judgment upholding the rights of the economically weaker sections without at all disrupting the existing reserve rights of OBCs, SCs and STs in educational institutions and public employment is historic and affirms the healthy march in pursuit of social justice and economic through democratic and constitutional means. Over time, courts in various judgments have indicated new standards to be kept in mind so that the benefit of the reservation is not monopolized by a few to the detriment of other deserving sections of the reserved category itself. . Various governments have imposed various criteria. Let this process of evolution continue. The people of India are the final arbiter and their voice, as expressed in Parliament, also deserves due respect.
The author is Senior Advocate, Supreme Court of India, Member of Parliament, Lok Sabha and former Minister of Justice of India