Upholding the 103rd Constitution Amendment

(MainsGS2:Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.)

Context:

The Supreme Court, by a 3:2 majority, has upheld the validity of the Constitution (103rd Amendment) Act, 2019, providing reservation up to 10% for Economically Weaker Sections (EWS) in education and employment among those groups that do not come under any community-based reservation.

Major changes:

The legislation marked a major change in the country’s approach to reservation from a form of affirmative action in which membership of a social group was the main basis for extending reservation; it moved towards using income and means as the basis for special provisions.
In Indra Sawhney (1992), a nine-judge Bench had ruled that there can be no reservation solely based on economic criteria, as the Constitution did not provide for it.
The 103rd amendment introduced Article 15(6), an enabling provision for the state to make special provisions for “any economically weaker sections of citizens” other than those mentioned in the previous two clauses, namely, the “socially and educationally backward classes” and Scheduled Castes and Scheduled Tribes.
It also introduced a corresponding Clause 6 in Article 16 to enable reservation for “economically weaker sections”, other than the SEBCs and SC/ST, in public employment and education.
Article 15, which protects against discrimination on any ground, and Article 16, which mandates equality of opportunity in public employment, were thus changed to allow special provisions and reservations for the EWS category, subject to a maximum of 10%.

grounds of challenge

Petitioners contended that the amendment violated the basic structure of the Constitution because it violated the equality code.
The violation occurred (a) by the introduction of economic criterion when reservation was only meant for groups that were socially and educationally backward due to historical disadvantages and not due to individual lack of means, and by converting a scheme to overcome structural barriers for the advancement of social groups into an anti-poverty measure
(b) by excluding OBC/SC/ST candidates from the EWS category
(c) by breaching the 50% ceiling on total reservation, without which reservations will become the norm, and the principle of non-discrimination and equal treatment will become the exception.
The Supreme Court evoked the ‘basic structure doctrine’ under which it held that Parliament’s power to amend the Constitution has some inherent limitations.
While there is no exhaustive list, concepts central to the constitutional system such as secularism, federalism, independence of the judiciary, rule of law and equality before the law are considered its basic features.

upholding EWS quota

Justices Dinesh Maheshwari, Bela Trivedi and J.B. Pardiwala, the three judges who constituted a majority of the five-judge Bench, rejected the basic structure challenge completely.
They held that there was nothing wrong in addressing economic weakness through reservation as an instrument of affirmative action.
Reservation need not only be for socially and backward classes, but can also cover any disadvantaged section.
Classifying a section based on economic criterion alone was permissible under the Constitution, and the EWS quota did not violate any essential feature of the Constitution.
The majority also ruled that the exclusion of the classes already enjoying reservation from the EWS category does not offend the equality principle.
Regarding the breach of the 50% limit, the majority view was that the ceiling itself was not inflexible or inviolable.
At the same time, another point in favour of the extra 10% quota was that the 50% limit was applicable only to the existing reserved categories (OBC/SC/ST), they said.

Dissent voice:

Chief Justice U.U. Lalit and Justice Ravindra Bhat differed from the majority, however, the minority too agreed that introducing special provisions on the basis of economic criteria is legitimate and does not per se violate the Constitution’s basic structure.
Minority voices held that the exclusion of backward classes from the category violated the basic structure.
Justice Bhat noted that reservation was a powerful tool to enable equal access and equal opportunity, but while introducing an economic basis for reservation, the socially and historically disadvantaged classes had been arbitrarily excluded.
Excluding them “on the ground that they enjoyed pre-existing benefits is to heap fresh injustice based on past disability,” he said.
The conclusion was that the Amendment resulted in hostile discrimination against the poorest section of society that was socially and educationally backward, and that these classes were subjected to caste-based discrimination.
Therefore, it violated the equality code, particularly the principles of non-discrimination and non-exclusion, which were part of the basic structure.

On Article 16:

Justice Bhat had an additional ground to strike down Article 16(6) as Article 16 mandates equality of opportunity in public employment, with representation for the unrepresented classes through reservation being the only exception.
The EWS category “snaps this link between equal opportunity and representation” by introducing a category that is not premised on ‘inadequate representation’.
This additional reservation for those already represented in public employment violates the equal opportunity norm, which is part of the basic structure.