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103rd Constitutional Amendment: An Analysis

by Saurabh Mishra
103rd Constitutional Amendment Analysis by Adv Saurabh Mishra

Introduction

Reservations for backward classes were established in regions such as the Presidency and Princely states even before Independence. Following the adoption of the Indian Constitution in 1950, the Centre and States adopted reserves for SC and ST, along with reservations for weaker sections of society in a lot of states. The Mandal Commission, which examined the socially and educationally inferior sections of people, brought about significant reforms in the caste structure following Independence.

Although it is undeniable that unequals cannot be treated as equals, creating reservations only on the basis of economic status cannot ever be the remedy to all hardships, and it is high time to establish a methodical period of time for reservations. As a result, in order to raise a certain segment of the population, a different technique must be investigated.

“Equality” seems to be a simple concept, yet it is surprisingly complicated. Jurists distinguished between the ideas of ‘formal equality’ and ‘substantial equality’. “While formal equality mandates the state to treat all citizens equally in the eyes of the law, substantive equality understands the reality that equality exists only between equals and that perpetuating inequality is equal treatment.” If particular groups of people have been harmed significantly as a result of historical atrocities, the state has a legal obligation to act to alleviate the situation until the previous victims are able to enhance their capabilities and function even without special safeguards. All democratic nations’ global human rights law and domestic laws are dominated by the idea of significant equality. 

On 14th January, 2019, The 103rd Constitutional Amendment Act, 2019 was introduced to India which primarily amended Articles 15 and 16 of the Constitution by incorporating two new clauses allowing the State to consider making a reservation of up to 10% for economically weaker segments (EWS) of individuals besides Scheduled Castes (SC), Scheduled Tribes (ST), and non-creamy Other Backward Layers, and just how far would that be justified on the grounds of reservation jurisprudence.

The fresh clause (6) of Article 15 empowers the state to enact any “unique provision,” such as reservations for admittance to educational establishments, whether helped or unaided, with the exception of minority instructional groups, which are protected by Article 30. (1). Reservations in governmental posts or offices are allowed under Article 16’s new clause (6).

Constitutional validity of the 103rd Constitutional Amendment

Various foundational concepts, like functional democracy, republican type of government, federalism, fraternity, liberty, secularism, judicial autonomy, judicial review authority, and so on, comprise the heart or substance of the Constitution and give it a distinctive ‘Identity.’ This is dictated by the idea of fundamental nature, and it cannot be changed since it would jeopardise the constitution’s uniqueness.

The Supreme Court has always concluded that economic underdevelopment cannot be the principal reservation condition, and also that reservation is only a means of gaining accessibility for marginalized communities, not just an anti-poverty scheme. However, such Supreme Court rulings tested legislative or an executive order both against constitutional requirements, as they did in the past. They are now being told that there is no constitutional change that confirms economic backwardness as the sole basis for a new reserve classification. As a result, it is possible that the Supreme Court has consistently concluded that total reservations must not surpass 50% in order to be reasonable while not defeating or nullifying the fundamental right to equality.

The Court asserted that this is a binding rule, not just a prudential rule but it is to be noted that new amendment that was brought into the picture effectively encroaches ’50% ceiling’ therefore also bringing in the aspect of article 14 with regards to the 103rd constitutional amendment where the fundamental right to equality is also being snatched.

In the landmark case of Kesavananda Bharati v. State of Kerala[1], “the Supreme Court ruled that the Parliament’s power to amend the Constitution of India under Article 368 is not absolute and even a Constitutional amendment can be struck down if it has the effect of destroying or abrogating the ‘basic structure’ of the Constitution.”

P.V. Narasimha Rao’s government published an Office Memorandum reserving 10 percent of postings for ‘other economically deprived categories.’ In Indra Sawhney v. Union of India, the Supreme Court overturned this verdict. The court in Indra Sawhney v. Union Of India and Ors[2]. examined the constitutionality of the allocations, delving into the idea of backwardness in detail. Reservations were to be created for “groups who haven’t had representation in the State,” according to Dr. BR Ambedkar. Indra Sawhney explains that the Constitution allows for “appropriate representation” rather than “proportionate representation,” which is among the grounds for the 50 percent quota restriction.

 In this landmark judgement, the court laid down various guidelines that have helped in providing light upon formal and substantiative equality. It affirmed the OBC reserve of 27%, with the exception of the “creamy layer. “It overturned the 10% quota for economically disadvantaged people and declared that a backward class of citizens cannot be defined solely on the basis of economic grounds”. It was decided that “carried-forward or backlog reserved” openings should not account for more than 50% of all admissions each year. It was decided that reservations can only be created in a product or category if the State is convinced that there is insufficient participation of the backward class of residents.[3]

 In M. Nagaraj v. Union of India & Ors[4]., “the Hon’ble Court granted the constitutional validity of Article 16 (4A) and the proviso to Article 335, and reaffirmed that the 50 percent ceiling, the concept of creamy layer, and convincing reasons such as insufficiency of representation, marginalisation, and overall administrative effectiveness are among the constitutional provisions without which the principle of equal opportunity in Article 16 would be lost. Excessiveness, whether in the form of reservation or review, would be a breach of the constitutional requirement, it was also said. As a result, the Constitution’s equality rule now includes a 50 percent ceiling restriction on reservations.”

Critical analysis

The relevant element to address is whether the reservation policy, that has been in place for above 60 years and is still broadening, has provided to elevate the socially and economically backward groups of society or has it resulted in other aspects of social injustices, such as class animosity and further marginalisation of reserved classes as a form of retaliation.

The Indian Constitution establishes an “equality code” to remedy historical injustices and the obvious inequality in higher education and government jobs. Article 14 assures everybody equal protection under the law and equality before the law.

The Supreme Court ruled in M.R. Balaji v. State of Mysore[5] “that the 68 percent quota provided under Article 15 (4) for admissions to medical and engineering institutes in the State of Mysore should be reduced to 50 percent. The 50 percent Rule was devised in order to strike a compromise between formal and substantive equality. This regulation states that the total number of available chances or reservations cannot exceed 50% of the total number of available opportunities or reservations. The 50 percent rule, on the other hand, is a part of the Basic Structure, and the current Constitutional Amendment violates it.”

The reservation system is not wholly founded on casteism, and as a result, it disrupts society, causing prejudice and disputes between various groups. It’s the polar opposite of residing in a group. It is imperative that the reservation system be reformated. The reservation system has mostly resulted in tension between the country’s reserved and unreserved groups. From a neutral point of view, it may be claimed that, while reservation is necessary for the country, a structure that promotes affirmative action over appeasing politics is also required. Any disadvantages of reservation should not be used as a hindrance to India’s fast-growing economy.

Conclusion

In India, castes/classes that are statistically dominant but culturally and academically disadvantaged used electoral politics and legislative power to advance their interests in development and welfare jobs. As previously noted, the Supreme Court has often approved on constitutional modifications relating to reservations, with the “50 percent ceiling rule” and the “creamy layer” proposal being the only two areas where it has taken an active stance. It remains to be seen if the Supreme Court will remain steadfast and uphold the “50 percent ceiling rule,” or allow it to be swept away by political tides. However, it can be shown from past judgments that the current modification violates the principle of equality since it destroys the constitutional integrity of the Articles established in the Equality Code and the Parliament has overreached in enacting this Amendment. In addition, the Amendment breaches the Basic Structure’s 50% Rule. In addition, by allowing reservation to well-represented classes, the 103rd Constitutional Amendment undermines the notion of substantive democracy.

This article has been written by Mr. Saurabh Mishra, Advocate-on-Record (AoR) at the Supreme Court of India. Opinions expressed are personal.

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[1] Kesavananda Bharati v. State of Kerala 1973 SC 1461

[2] Indra Sawhney v. Union Of India and Ors AIR 1993 SC 477

[3] Das, S., 2011. Reservations: Case Study of Indra Sawhney v. Union of India. SSRN Electronic Journal,.

[4] M. Nagaraj v. Union of India & Ors (2006) 8 SCC 212

[5] M.R. Balaji v. State of Mysore 1963 AIR 649

About the author:

Adv Saurabh Mishra

Adv. Saurabh Mishra is an NLIU, Bhopal graduate and is currently Advocate-on-Record (AoR) at the Supreme Court of India and Additional Advocate General (M.P.). He can be reached via LinkedIn here.

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