The ambiguity of reservations for the poor: unconstitutional or not?

Source: The post is based on an article “The ambiguity of reservations for the poor: unconstitutional or not?” published in The Hindu on 1^st November 2022.

Syllabus: GS 2 – Governance

News: The Constitution Bench led by CJI U. U. Lalit has reserved its judgments regarding challenges against reservations based solely on economic criteria introduced by the Constitution (103rd) Amendment Act, 2019.

Which changes were made in the Constitution by 103rd Constitution Amendment Act?

The 103rd Constitution Amendment Act amended Article 15 and Article 16 of the Indian Constitution.

Article 15 now enables state to take special measures in favour of EWS with maximum 10% reservations in admissions to educational institutions whereas Article 16 now allows 10% reservations for EWS in public employment.

The amendment leaves the definition of ‘economically weaker sections’ to be determined by the state on the basis of ‘family income’ and other economic indicators.

It also excluded SC/STs, OBCs and other beneficiary groups under Articles 15(4), 15(5) and 16(4) as beneficiaries of the 10% EWS reservation.

However, there are different arguments regarding the Act.

What are the different arguments regarding the Act?

Arguments against the Act

Contradictory to Indra Sawhney judgement: SC in Indra Sawhney case held the Narasimha Rao government’s executive order of providing for 10% reservations based purely on economic criteria unconstitutional.

The argument made by the SC was that income criteria cannot be sole reason behind the exclusion from government jobs and the Constitution was primarily concerned with addressing social backwardness.

Arguments for the Act

Does not violate basic structure doctrine:  Some argue that that the amendment violates basic structure of the Constitutions as reservation is given on the basis of economic criteria. However, Constitution does not explicitly mention that backwardness only means social and educational backwardness.

Further, the state may come up with different measures for EWS category in ensuring reservations in education and public employment which may raise concerns. However, using reservations and special measure for addressing poverty do not violate the basic structure doctrine.

Does not contradict reservation under Article 16: Article 16(4) allows reservations for backward classes (SC/STs, OBCs) and it is dependent on beneficiary groups not being ‘adequately represented’ but this adequate representation has been omitted in Article 16(6) for EWS.

This amendment makes easier for the state to provide reservations in public employment for EWS.

However, ‘representation’ is not the aim of EWS reservation. Thus, Question of ‘adequacy’ is relevant only in the context of representation made by the backward classes under Article 16(4). Moreover, there are other challenges with the Act.

What are the challenges ahead?

Breaching the 50% limit: The amendment may be challenged on the ground that it breaches the 50% limit of the reservation as given in the Indra Sawhney judgment. However, the majority of judges held that the 50% ceiling must be the general rule and a higher proportion may be possible in ‘extraordinary situations.’

The court also said that the constitution focuses not one of ‘proportional representation’ but one of ‘adequate representation’. Therefore, the 50% ceiling limit might not be suitable when the beneficiaries constitute more than that.

Equality: There might also be challenges regarding the idea of equality. The majority judges in Indra Sawhney invoked the idea of balancing the equality of opportunity of backward classes against the right to equality of everyone else. Therefore, the court may also face challenges to solve these critical issues in the future.

Defining EWS: The government might face difficulties in defining the EWS category and setting the required income limits for the category.