Opinion Ravi Shankar Prasad on 103rd constitutional amendment: It was a rare moment of unanimity

The amendment, when it was considered and passed in both Houses of Parliament, saw a rare unanimity. I too got the privilege to intervene as then Union law minister. However, the most remarkable part of the debate was the powerful voices of eminent leaders from the reserved category like Hukmdev Yadav in the Lok Sabha and the late Ram Vilas Paswan in the Rajya Sabha who emotionally recalled how important leaders of the non-reserved category have consistently advocated the cause of empowerment for the OBC, SC and ST communities. They further said that now their empowerment has gathered pace and hence, it is also their responsibility to speak for the rights of the marginalised and deprived economically weaker sections. This was indeed a moving moment.

The Narendra Modi government, as an ardent supporter of inclusive development, came up with this amendment for the first time to fulfil the mandate of Article 46 of the Constitution. It enjoins the state to promote with special care the educational and economic interests of the weaker sections of society, in particular SCs and STs, and protect them from social injustice. This constitutional mandate was clearly applicable to all the weaker sections. Remarkably, the unanimity inside Parliament over this historic measure was reflected all over the country, causing no bitterness or discord.

The amendment was challenged and the Constitution Bench inter alia framed three issues: First, whether reservation structured singularly on economic criteria violates the basic structure of the Constitution. Second, whether the exclusion of classes covered under the benefit of reservation for OBCs, SCs and STs as economically weaker sections violates the equality clause and the basic structure doctrine. Three, whether reservation for EWS citizens up to 10 per cent, breaching the ceiling limit of 50 per cent, is unconstitutional.

Significantly, the majority held that in the ultimate analysis, the question as to how the requirements of social-economic justice are to be balanced in our constitutional scheme and whether any constitutional amendment is to be made or not is essentially in the domain of Parliament. The Court cannot disturb this by “second guessing” the desirability of a particular provision.

The Court aptly quoted former Chief Justice of India P B Gajendragadkar: “These experiments represent in a sense an adventurous voyage of discovery in unknown ethical regions, prepared to take the risks but determined to win the ultimate prize of socio-economic justice”. The Court further held that the state’s effort at ensuring all-inclusive socio-economic justice cannot be a competition of claims for affirmative action based on disadvantages such that one disadvantaged section would seek denial of affirmative action for another disadvantaged section. The Court further held that the 50 per cent limit in very exceptional circumstances can be relaxed for good and sufficient reasons, which are apparent in the 103rd amendment. It further held that the amendment has been made in the relevant fundamental rights clauses itself, which cannot be tinkered with lightly.

The minority judgment has taken the view that the amendment creates arbitrary classification, denying the poorest sections of society the benefit of an additional 10 per cent reservation and, therefore, it violates the equality code that forms a part of the basic structure. The minority view, however, clarified that the economic criteria are permissible for access of public goods under Article 15 but not in the case of Article 16 for public employment.

It is respectfully submitted that the majority view summarises the constitutional ethos of equality and empowerment in the correct perspective. The judgment upholding the rights of economically weaker sections without at all disturbing the existing reservation rights of OBCs, SCs and STs in educational institutions and public employment is historic and affirms the healthy march in the quest for social and economic justice through democratic and constitutional means. Over time, the courts in various judgments have indicated new standards to be kept in mind so that the benefit of reservation is not monopolised by a few to the detriment of other deserving sections in the reserved category itself. Various governments have imposed various criteria. Let this process of evolution be allowed to continue. The people of India are the final arbiter and their voice as reflected in Parliament also deserves due respect.

The writer is Senior Advocate, Supreme Court of India, Member of Parliament, Lok Sabha and former Law Minister of India