This Article is written by Annu Kumar
Table of Contents
Introduction
Reservation is taken as affirmative action for the people of the socially and educationally backward sections of the society in the Indian constitution. There are numerous cases of people that reside in India like scheduled caste, scheduled tribe, backward classes and upper castes referred to as general category citizens.
Reservation was introduced to fulfil the absence of equal opportunity to everyone who resides in India but the objective behind this reservation was losing faith from the public.
Is a Constitutional amendment a law under Article 13(2) ?
In Shankari Prasad v. Union of India[1], the Supreme Court held that the word ‘law’ in clause (2) did not include law made by parliament under Article 368.
While in another case Golaknath v. State of Punjab[2], the Supreme Court held that an amendment is a law under Article 13(2) of the Constitution of India and if violates any fundamental right, it may be declared void.
What is the 103rd amendment act?
The Constitutional 103rd Amendment Act got assent from the President of India on 13th January 2018 and it was passed in the Lok Sabha by 323 members who were in prefer of it and 3 members who were against it. It was passed in Rajya Sabha with 165 members in favour and 7 against. This provides for reservation in the Central Government jobs as well as the government education institutions. This amendment applies to citizens who belong to the economically weaker section from the upper castes. The primary objective was to include people from economically weaker sections of the society to attend the higher education institutions and jobs in public employment which continue to be unfulfilled due to their financial incapacity.
It was drafted with a will to make Article 46 compulsory that urges the Government of India to provide protection to all the educational and economic interests of the weaker section of society. Since socially disadvantaged sections have enjoyed the privilege, there was relief provided to economically disadvantaged sections as well.
In which article 103rd amendment id amended?
Article 15(6) is brought to protect economically weaker sections of the society and provide them admission to academic institutions consisting of private institutions except for minority academic institutions. This amendment basically aims to provide reservation to those who do not fall in 15(5) and 15(4). Another article 16(6) was introduced to furnish an economically weaker section, reservation in government posts. The term economic weakness will be decided based on family income.
The constitutional validity of 103rd amendment act
In the landmark case of Kesavananda Bharati v. State of Kerala[3], the Supreme Court ruled that the Parliament’s power to amend the Constitution 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.
In the Case of M.R. Balaji and Ors. v. State of Mysore- The State of Karnataka[4], had a reservation system that had been in force since before the advent of the Constitution. Hence, the system was continued even after it. The State of Mysore issued an order under Article 15(4) of the Constitution declaring all the communities except the Brahmin community as socially and educationally backward and thereby, reserving a total of 75 per cent seats in Educational Institutions in favour of SEBCs and SCs/STs. Such orders were issued every year, with minor variations in the percentage of reservations. The validity of the impugned order was questioned under Article 32 of the Constitution. The Five-Judge Bench of the SC enunciated the principles explaining that for the purpose of usage of Article 15(4), the backwardness in question must be social as well as educational. Therefore, despite the caste system being relevant to Hindus, this could not be made the sole test of social backwardness as the caste system was not prevalent in other religions. The Court also mentioned the importance of the reasonability of the reservations that were made under this Article. Reservations should in no way defeat the general principle of equality and hence, must always be less than 50% of the total seats available. The Court also stated that going above the 50% ratio would not be in compliance with Article 16(1) of the Constitution.
In Indira Nehru Gandhi v. Raj Narain[5], the Supreme Court held that for each case once it, the Court would decide the statement that any specific characteristic of the Constitution was a fundamental characteristic.’ Until now, various judges have proclaimed a variety of characteristics ‘basic’ separately, in distinct instances. However, in several instances, this absence of unanimity did not impede the Supreme Court’s application of the basic structure doctrine.
An obvious understanding of the basic structure doctrine makes it clear that all it requires is that a basic feature, equality, in this case, is not damaged or destroyed and it is difficult to see how the economic reservations would damage or destroy the concept of equality. The government has sought protection under the Directive Principles of State Policy which enjoins the State to promote the educational and economic interests of the weaker sections of the people as provided under Article 46 of the Constitution[6]. Thus, Article 15(6) and 16(6) has been formulated with an aim to eliminate discrimination on the basis of economic status, giving an opportunity to the section of people who are deprived of adequate representations in the educational institutions or jobs, hence striving towards equality and not challenging the basic structure.
WHETHER ECONOMIC CRITERIA CAN BE THE SOLE BASIS FOR RESERVATION.
Various provisions of the Constitution like Articles 15, 29, 46 and 341 recognise the factual existence of backward classes in our country and make a sincere attempt to promote the welfare of the weaker sections. This Act is a sincere attempt in this direction to mitigate the hardships of the people who are left behind because of their economic conditions.
In Youth for Equality V. Union of India[7], Attorney General KK Venugopal argued that the 50% limit on the reservation is not mandatory as said in Indra Sawhney v. Union of India[8]. He further contended that the reservations based on economic criteria alone have already been held valid in a binding judgment of the court, Society for Unaided Private Schools of Rajasthan v. Union of India[9].
A welfare with a population of 200 M poor people, Indian State had an obligation to give effect to the Preamble’s objectives of economic justice and equality of opportunity, as well as Article 45,46 in the Directive Principles of State Policy. He further added there was no reason to refer the matter to a larger bench as every matter of grave effect on Article 14 has already been settled by the Supreme Court. The amendment provided 10% reservation for the poor among the 50% that is not covered by the reservation. He also said that it was the government’s constitutional duty to uplift the poor by providing education to them.
WAY FORWARD
- If we examine the statistics of below poverty line people, we can observe that there are poor people in all communities including communities that fall under OCs. Caste based reservations are discriminatory towards poor of OCs . Why should people be discriminated based on birth? If the reservation system is based on economic status, both students would have equal chances to grab that seat.
- Only a few families are utilising reservations for many generations. There is no rule that if a person got job due to reservation, his/her child should not utilise reservation. Due to this, people who are already enjoying the benefits of reservation, using reservation again and again though they do not need it at all.
- Indian constitution advocates equality, yet it is not maintaining the rule in reservation, particularly while considering the way that rich and helpless exists in all communities.
- Caste divisions are hatred among communities is increasing due to reservations. Numerous people group in a few state of India are battling to give them reservations. Also, the outcome is individuals are progressively connecting with their station.
CONCLUSION
New reservation on the basis of economic background is based on moral duties which are implicitly part of the constitution. Every person has the right to ‘not face any inequality on the base of any ground’ and, the directive principle of state policy (DPSP) is a moral obligation on the state to secure a social order for the promotion of welfare of the people. Reservation on the basis of economic background may pave the way for a casteless society which was initially the purpose of Dr Ambedkar’s reservation system.
[1] AIR 1951 SC 458
[2] AIR 1967 SC 1643
[3] AIR 1973 SC 1461
[4] AIR 1963 SC 649
[5] AIR 1972 SC 1302
[6] Art.46 of DPSP, COI
[7] LNINDORD 2013 SC 8672
[8] AIR 1993 SC 477
[9] (1997) 6 SCC 241
