Tags:
Journalism of Courage
The Supreme Court will give on November 7 its decision on the constitutional validity of the 103rd amendment to the Constitution, which introduced a 10 per cent reservation for Economically Weaker Sections (EWS) in admissions to educational institutions and government jobs.
The court is seized of as many as 40 petitions dealing with various aspects of the reservation policy introduced in 2019. We explain why petitions are challenging the law, and what the amendment says.
The 103rd Amendment of 2019 inserted Articles 15(6) and 16(6) in the Constitution to provide 10 per cent reservation to EWS other than backward classes, SCs, and STs in higher educational institutions and initial recruitment in government jobs. The rationale was that the amendment could empower state governments to provide reservations on the basis of economic backwardness – determined by criteria such as land size owned, annual income, etc.
Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. Article 16 guarantees equal opportunity in matters of public employment. The additional clauses gave Parliament the power to make special laws for EWS as it does for SCs, STs, and OBCs.
The EWS reservation was granted based on the recommendations of a commission headed by Major General (retd) S R Sinho. The commission, which was constituted by the UPA government in March 2005, submitted its report in July 2010.
The Sinho Commission recommended that all below-poverty-line (BPL) families within the general category as notified from time to time, and also all families whose annual family income from all sources is below the taxable limit, should be identified as EBCs (economically backward classes).
Calling the amendment “an attack on the constitutional vision of social justice” and “a fraud on the Constitution”, those petitioning against it contend that if upheld, it will be the end of equality of opportunity. They also argue that it violates the basic structure of the Constitution and breaches the 50 per cent ceiling for reservation fixed by the Supreme Court ruling in the Mandal Commission case.
As the late PS Krishnan, a former Secretary to the Government of India wrote in The Indian Express in 2019, “As the Mandal judgment describes, the founding fathers of the Constitution were keenly and poignantly aware of the ‘historic injustices and inequities’ prevalent over the centuries in Indian society. These were not inequities against individuals. These were deprivations imposed on certain social classes as a whole.” He pointed out the key issues of access to education and employment, denied on the basis of identity to those groups for whom reservation of seats was brought in before 2019.
Attorney General K K Venugopal had drafted four issues for the consideration of the Bench. On September 8, the court decided to take up three of them:
Backing the EWS quota, the then Attorney General K K Venugopal told the court that it would not in any way erode the rights of the Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs). “EWS have been given reservation for the first time. On the other hand, so far as the SCs and STs are concerned, they have been loaded with benefits by way of affirmative actions,” he said.
Against the argument of violation of the basic structure, the government said that “to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the Constitution has been altered”.
The Ministry of Social Justice and Empowerment also argued that under Article 46 of the Constitution, part of Directive Principles of State Policy that is non-justiceable, the state can take such measures as it has a duty to protect the interests of economically weaker sections: “The state shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
