A 5-Judge Bench of the Supreme Court has upheld the validity of the 103rd Constitutional Amendment Act (Janhit Abhiyan v. Union Of India).
Numerous petitions were filed against the validity of the act. They argued that it violated the basic features of the Constitution and the fundamental right to equality enshrined under Article 14 of the Indian constitution. The Bench, by a 3:2 majority, held that the Act is not violative of the basic structure of the Constitution.
The 103rd Constitutional amendment Act enabled the State to make reservations in higher education and matters of public employment on the basis of economic criteria alone. The Act amended Articles 15 and 16 of the Constitution by inserting 15(6) and 16(6).
The Amendment under Article 15(6) enables the State to make special provisions for the advancement of any economically weaker section of citizens, including reservations in educational institutions. It states that such reservations can be made in any educational institution, including both aided and unaided private institutions, except minority educational institutions covered under Article30(1).It further states that the upper limit of EWS reservations will be 10% (meaning up to 10% of seats can be reserved for citizens falling in the EWS category). This 10% ceiling is independent of ceilings on existing reservations.
Article 16(6) enables the State to make provisions for reservation in appointments. Again, these provisions will be subject to a 10% ceiling, in addition to the existing reservations.
It mandates Article 46 of the Constitution (Directive Principle) that urges the Government to protect the educational and economic interests of the weaker sections of society.
The first constitutional amendment act that gave constitutional backing to reservation for socially and economically backward classes was a response to the verdict in the Champakam Dorairajan case of 1950 in which the Supreme court ruled that reservation was violative of equality concept enshrined in Part III of the Constitution.
Later the court’s view evolved to one that saw it as a facet of equality and it is clearly visible in the judgements of Devadasan Case(1964) and NM Thomas case(1975).
In this particular case of concern all the judges agreed that Poverty can be a sole criterion for providing reservation.It clearly goes against the political,social and constitutional ground as held till now and that it is a means to achieve substantive equality in an unequal society and has been as a measure for reparation.The 5 judge bench has now gone against the view held in the Indira Sawhney case(economic status alone cannot be a criterion for reservation).
The EWS judgement has also allowed reservations to breach the 50% ceiling set by the court in the Indira Sawhney case and reiterated in other judgements.The argument that the ceiling applies only to caste based reservations and it does not violate the basic structure on account of 50% ceiling limit because it’s “not inflexible” opens a whole new dimension that once the ceiling is breached for any reason it can happen again quite often and the considerations for these misadventures can be political and not guided by public interest or social justice.
The feebleness of the Amendment act is that it excludes a large class of citizens who are eligible for reservation under it because of their economic status just because they because they belong to a class entitled to caste based reservations.Those subjected to socially questionable and outlawed practices have been excluded.They are amongst the poorest sections of society. Excluding them goes against the idea of fraternity.The exclusion virtually confines SC/ST/OBC within their allocated reservation quotas (15% for SCs, 7.5% for STs, 27% for OBCs).It denies the chance of “mobility from the reserved quota (based on past discrimination) to a reservation benefit based only on economic deprivation”.
The inclusion of the forward castes and exclusion of the disadvantaged castes who suffer from social and educational backwardness,from the scope of EWS reservation goes against Article 14 which guarantees equality before law.
There are other questions too ranging from 10% quota to the income limit being fixed at Rs8Lpa.The Union or state governments have no such data to prove that ‘upper’ caste individuals, who have less than Rs 8 lakh annual income, are not adequately represented in government jobs and higher educational institutions. There is a strong possibility that they are actually over-represented in these places.The criteria used by the government to decide the eligibility for this reservation is vague and is not based on any data or study.
Even the Supreme court questioned the government whether they have checked the GDP per capita for every State while deciding the monetary limit for giving the EWS reservation.
The judgement raises other points like that from now on historical wrongs are no longer sufficient grounds for Government benefits and new methods for identifying backwardness will be decided according to the will of the legislature.
The need of the hour now is that the Indian Political class overcame its urge of continually expanding the ambit of reservation in pursuit of Political gains and realised that it is not the panacea for problems.
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Instead of reservation based on different different criterias,the government should focus on quality of education and other effective social upliftment measures.The long term solution lies in sensitization and eliminating discrimination of all kinds through social and political mobilization. Unless that happens, status quo (on reservations) or demands for even further expansion of reservations will continue.
There has to be collective effort and wisdom to measure the economic weakness of certain sections of society to shape the concept of economic justice enshrined in the Indian constitution.
The current situation also calls for the need to revisit the reservation system.Justice Bela Trivedi opined that the reservations were introduced to correct the historical wrongs faced by the people belonging to the Scheduled castes, Scheduled tribes and Other backward classes and to provide them a level playing field.
Reservation is not an end but means to an end in order to ensure social and economic justice and should not be allowed to
become a vested interest.
The real solution is to eliminate the causes that led to the backwardness of the weaker sections.e