Updated: January 15, 2019 8:32:25 am
In the 124th Constitutional Amendment recently passed by both Houses of Parliament, providing for 10% reservation to economically weaker sections, the newly inserted Clause 6 in Article 16 enables the state to make such a provision. Because of this, the government is confident that the Supreme Court is unlikely to find such reservation unconstitutional and that the amendment will be upheld as consistent with the principle of equality and non-discrimination.
The move has, however, been challenged on the ground of violating the basic structure of the Constitution. An NGO, Youth for Equality, has moved a petition on this ground, while senior advocate Indra Sawhney, whose plea had led to the landmark Mandal judgment capping reservations at 50%, is contemplating a challenge to the amendment.
What is the basic structure of the Constitution, and how does the court determine whether a constitutional amendment violates the basic structure?
Why amend the Constitution?
Initially, since leading freedom fighters were Members of Parliament, the Supreme Court reposed faith in the wisdom of the then political leadership. In Shankari Prasad (1951) and Sajjan Singh (1965), it conceded absolute power to Parliament in amending the Constitution. But as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament does not have the power to amend the Constitution, and this power would be only with the Constituent Assembly. Then again, in Kesavananda Bharati (1973), the Supreme Court by a 7-6 majority held that Parliament can amend the Constitution but does not have power to destroy it — no amendment can change its “basic structure”. The court said that under Article 368, something must remain of the original Constitution that the new amendment would amend.
The idea of basic structure was originally suggested by Justice M Hidayatullah & Justice J R Mudholkar in Sajjan Singh (1965). It has been borrowed from Germany.
What is the basic structure?
The court did not define this, and only listed a few principles — federalism, secularism, democracy — as being part of basic structure. Since then, the court has been adding new features to the concept of basic structure. In subsequent years, courts extended the doctrine even to ordinary legislation and executive actions. The dismissal of BJP governments by the President following the demolition of the Babri Masjid was upheld in S R Bommai (1994), with the Supreme Court invoking a threat to secularism by these governments.
The doctrine of basic structure is not part of the text of the Constitution, and some experts even call it undemocratic as unelected judges can strike down a constitutional amendment. But then, the same thing can be said about judicial review. Like judicial review, the basic structure doctrine is a safety valve against majoritarianism and authoritarianism; it safeguards citizens’ liberties and preserves the ideals on which the Constitution is based. Thus, something may not be part of the text of any specific article of the Constitution, yet it may be part of basic structure. For instance “federalism” is not mentioned in the text but has been consistently included within basic structure. Similarly “secularism” was not in the text until 1976; but in 1973 it had been included within basic structure.
What context does basic structure have in reservation?
From the Poona Pact (1932) between M K Gandhi and Dr B R Ambedkar to the Constituent Assembly debates, reservation was talked about in the context of social backwardness of classes. The 124th Amendment makes a departure by extending reservation to the economically disadvantaged. Article 15(4), inserted by the First Amendment in 1951, enables the state to make special provisions for socially and educationally backward classes; Article 16(4) permits reservation for any backward class if it is not adequately represented in services under the state. Thus, reservation is not a right but, if granted, it will not be considered a violation of the right to equality. Article 17 abolishes untouchability; therefore, if there is an element of social exclusion of a class, reservation may be justified. Article 46, which is a non-justiciable Directive Principle, says that the state shall promote educational and economic interests of “weaker sections”, in particular SCs and STs, and protect them from “social injustices” and “all forms of exploitation”. While the 124th Amendment mentions Article 46 in its statement and objects, it seems the government overlooked the fact that upper castes neither face social injustice nor are subjected to any form of exploitation.
Moreover, the Constitution makes provisions for commissions to look into matters relating to implementation of constitutional safeguards for Scheduled Castes (Article 338), Scheduled Tribes (338A) and Socially and Educationally Backward Classes (339), but has not created any commission for the economically backward classes. Article 335 says that claims of SCs/STs will be taken into consideration, consistently with the maintenance of efficiency of administration, in making appointments to services and posts.
How will the court decide if economic reservation violates basic structure?
To determine this, the Supreme Court has to examine the principles on which affirmative action is based. As per M Nagraj (2006), it would have to apply two tests. One is the width test, on the boundaries of the amending power. This would include examination of four issues — quantitative limitations such as violation of the 50% ceiling for all reservations taken together; (ii) exclusion of creamy layer or qualitative exclusion; (iii) compelling reasons such as backwardness of the economically weaker sections for whom this reservation has been made; (iv) that overall administrative efficiency is not obliterated by the new reservation.
The second test is called the identity test, under which the Supreme Court will examine whether, after the amendment, there is any alteration in the identity of the Constitution. The amendment cannot change this.
Equality in India has been held to be the very essence of democracy and rule of law. While equality permits reasonable classifications, these are to be based on intelligible differentia, should have rational objects to achieve and should not be fanciful and arbitrary. In this case, the court has to examine the equality code of the Constitution and whether the state has considered and valued the circumstances justifying it, to make reservation. This would require that the state’s decision is rational and non-arbitrary. The state has to show quantifiable data to satisfy the court as to inadequacy of representation of economically backward classes.
It is clear from the Constitution that reservation can be for a caste or a class. In fact, caste is a social class and cannot be for individuals; the latest move has made it for the individual. Similarly, the government has to justify “compelling reasons” of going beyond the 50% limit. In some states, upper castes number less than 10% and this scheme may be difficult to justify as for 52% backward classes there is just 27% OBC reservation.
Even for SC/ST reservation in promotion, the court in Jarnail Singh (2018) relaxed only the condition of collection of quantifiable data about backwardness but insisted on the other two limitations — inadequacy of representation and efficiency not being adversely affected. The amendment could clear the test provided the SC rules that ignoring past injustices and social backwardness are not part of basic structure of equality and affirmative action under it.
Who are a backward class?
Before a caste is included within the backward classes, a thorough empirical assessment is to be made of its social, educational and economic conditions. For instance, the Mandal Commission covered 405 out of 406 districts and evolved 11 yardsticks covering social, educational and economic backwardness with social backwardness being assigned 3 points, educational 2, and economic 1 point. Out of total 22, if a group scored 11, it would be considered a backward caste. The castes that the Mandal Commission found to be “advanced castes” cannot now be termed “backward classes” without similar empirical evidence. Otherwise, it would be seen as an arbitrary action.
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