10% reservation and Basic structure

Context: Union government has passed an Act laying down 10% reservation for economically weaker sections and SC will hear a petition challenging the amendment alleging that it dilutes basic structure.

124^th Constitutional Amendment Act, 2019:

• The Act amends Articles 15 and 16 of the Constitution to give reservation in jobs and educational institutionsto the economically backward sectionsamong the general category over and above the 49.5% quota in place for SC, ST and OBCs.
• A new clause (5) has been inserted in Article 15, by 124^th Amendment, which allows state to make any special provision for the advancement of any economically weaker sections of citizens, including a maximum of 10% reservation, in addition to existing reservation, in educational institutions, including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.

• Article 16 stands amended after the addition of a new clause(6) which allows state to make any provision for the reservation of appointments or posts, in addition to existing reservation, in favour of any economically weaker sections of citizenssubject to a maximum of 10%.
• The legislation has been passed by the Parliament and has received President’s assent. But the Act has been challenged in the Supreme Court on the following grounds:
• 124^th Amendment violates the equality code of the Constitution and was in “breach of the basic structure of the Constitution”
• SC in ‘Indira Sawhney vs Union of India’ case, specifically stated that economic criteria cannot be the sole basis for reservations under the Constitution and placed 50% limit on quota. Other cases upholding the 50% limit on quota include ‘M. Nagaraj vs Union of India’ case, 2006 and the ‘Jarnail Singh vs Lachhmi Narain Gupta’ case, 2018.
• The expression “economically weaker sections” as this remains undefined under the amendment. This is left to be notified by the states, which is “arbitrary and unworkable”

Basic structure of the Constitution:

• The basic structure doctrine was laid down by the parliament in Kesavananda Bharti Case 1973, where in SC upheld the power of Parliament to amend any part of the constitution, including the fundamental rights.
• But, at the same time, it laid down that Parliament could not use its amending powers underArticle 368 to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or‘alter’ the ‘basic structure’ or framework of the Constitution.
• The court did not define ‘basic structure’ objectively, and initially listed only a few principles — federalism, secularism, democracy etc. The concept has evolved since then and has seen many additions like independence of judiciary, rule of law judicial review etc.

124^th Amendment Act changes the basic structure of the Constitution as:

• Against Article 14and 15: Reservation for general category excludes the Other Backward Classes and Scheduled Castes and Scheduled Tribes from this reservation, which is on economic basis. Hence, the amendment is discriminatory and is in conflict with Articles 14 and 15.
• Reservation available for ‘class’ not individuals: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.

Other reasons raising doubts about validity of the 124^th Amendment:

• Incorrect usage of Article 46: According to government, 10% reservation would promote educational and economic interests of “weaker sections” under Article 46,which seeks to protect them from “social injustices” and “all forms of exploitation” but upper castes neither face social injustice nor are subjected to any form of exploitation.
• Breaching the 50% limit:The government has to justify “compelling reasons” of going beyond the 50% limit, which may be a ground for declaring it unconstitutional by the court.
• Lack of empirical data: The reservation has been proposed by the government without adequate empirical data about backwardness of economically weaker sections or proposed improvement after reservation.
• For instance, the Mandal Commission covered 405 out of 406 districts and evolved 11 yardsticks covering social, educational and economic backwardness with social backwardness.
• The case is pending in the Supreme Court and it is now for the courts to decide the validity of 124^th Amendment Act.