[Answered] “103rd constitutional amendment present a more difficult judicial examination than usual”. Comment. Discuss 103rd amendment act and its salient features.

The 103^rd amendment act provide for reservation in appointments to posts under the state and in admissions to educational institutions to “economically weaker sections of citizens [EWS]”. This reservation, can extend up to 10% of the total seats available. On one hand it is lauded as a tool for economic justice but on the other hand, it is criticised for infringing on the very basic of the constitution.

Salient features of the act:

1. 103^rd amendment act provides for reservation of jobs in central government jobs as well as government educational institutions. It is also applicable on admissions to private higher educational institutions.
2. It applies to citizens belonging to the economically weaker sections of any sect of society.
3. This reservation is “in addition to the existing reservations and subject to a maximum of 10% of the total seats in each category”.
4. It mandates Article 46 of the Constitution of India, a Directive Principle that urges the government to protect the educational and economic interests of the weaker sections of society.

Amended articles of the constitution:

1. Article 15 (6) is added to provide reservations to economically weaker sections for admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30. The amendment aims to provide reservation to those who do not fall in 15 (5) and 15(4) (effectively, SCs, STs and OBCs).
2. Article 16 (6) is added to provide reservations to people from economically weaker sections in government posts. An explanation states that “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”

Arguments that are against the Act:

1. Lack of discussion and academic inputs: The Bill was not circulated before being introduced in the parliament. It was also not examined by any committee. There was hardly any time between its introduction and final discussion.
2. Difficult to accommodate new reservation: It will be difficult to increase the number of seats for many institutions to accommodate new reservation. Even many government institutes lack adequate infrastructure and resources. Act will put extra burden on them.
3. Mediocrity: It will lead to mediocrity. Admission of poor quality students under the quota may impact the system of education.
4. Violates basic structure: It is argued that the amendment, where reservation is provided on individual economic status, violates the Constitution’s basic structure.
5. Against equality: The amendment is against the idea of equal opportunity. It favours a few and provide them special privileges discriminating others.

Arguments in favour of the act:

1. Not for certain sects: The reservation mooted is for all economically weaker individuals. Thus idea of religion and caste is not used in reservation which had been the case till now as the new law of 10% quota in government jobs and education for economically weaker sections is irrespective of religion and caste.
2. Not against basic structure: It is established principle that reservation shall have a cap of 50%. The government notification providing 10% reservation to weaker economic sections of society was struck down in Indra Sawhney v. UOI. However these rulings were given in relation to a law and have never been discarded in violation of Basic Structure Doctrine. Also, the existing articles 15(4), 15(5) and 16(4) do not mention that reservation shall be 50% explicitly, by way of legislation. Thus basic structure does not seem to be violated.
3. Promote economic welfare: 103^rd amendment act promote economic welfare of the society. It enable inclusion of those who are left behind because of economic disabilities. Thus it enable economic welfare of the society.
4. Decrease inequalities: In India economic inequalities are high. About top 1% own major resources of the economy. 103^rd amendment act ensure distribution of resources and reduce income inequality in the economy.
5. Ensure economic growth: 103^rd amendment act ensure economic growth by reaping demographic dividend. It ensure an inclusive growth by providing equal opportunity to economically weaker section of society.

Although 103^rd amendment act has many advantages it poses a difficult judicial examination than usual. No doubt it envision to uplift economically weaker sections of the society, but its constitutional validity need to be examined.