Anmol Jain & Aditya Saraswat
The Constitution (One Hundred and Third Amendment) Act, 2019 violates, inter alia, the Art. 14 conception of equality and should therefore be struck down as unconstitutional
Yesterday, the Supreme Court declined to issue an orderstaying the implementation of the the Constitution (One Hundred and Third Amendment) Act, 2019 [“the Amendment Act”]. Instead, the Court tagged Tehseen Poonawalla’s petition with several other similar petitions, and directed the Centre to respond.
It took Parliament less than a weekto enact the Amendment Act, provisioning for 10% reservation in all educational institutions, aided or unaided by the government, and government jobs for the economically weaker classes other than SCs, STs and OBCs. Gujarat became the first Stateto implement the Amendment Act immediately after two days of the Presidential assent, followed by Uttar Pradesh. According to the media reports, Telanganaand Andhra Pradeshare also set to implement the Amendment Act.
Several sections of society have termed this move of the Government a mere political gimmick intending to appeal to a certain votebank. Interestingly, this is a sentiment accepted on recordby the incumbent Minister of State for Social Justice and Empowerment:
“The bill was required as the elections have approached. One should do whatever is possible to win elections, you might do the likewise. … Modi Ji, Amit Shah and I are aptly smart to decide what is to be done in the next 2-3 months to win the elections and convince people.” (translated version) [Page 13]
The Amendment Act is being seen as a tool to retrieve the upper caste vote basein the BJP stronghold states – Rajasthan, Madhya Pradesh and Chhattisgarh, where the BJP has recently lot the state elections.
Arguments raised against the Amendment Act – Can they stand?
The Amendment Act has already been challenged in the Supreme Courtthrough multiple petitionsand the Madras High Court. Both the Courts have issued noticeto the Central Governmentand the Supreme Court has refused to staythe implementation of the Amendment Act. The prime arguments in both the petitions are three-fold: (i) the Amendment Act violates the basic structure of the Constitution; (ii) the Amendment Act breaches the 50% limit on the reservation fixed by the Supreme Court; and (iii) providing reservation only on economic grounds is against the policy of reservation as envisaged in the Constitution, which allows reservation based on social and educational backwardness only. Another prominent argument was raised by Shri Kapil Sibal in the Rajya Sabha[page 236] that the Government has failed to collect the state-specific data determining the percentage of population spread among different castes.
However, these arguments might not hold during the Court’s scrutiny. Gautam Bhatiahas correctly pointed out that Kesavananda Bharti[¶421]has restrainedthe power of the Parliament to ‘damage or destroy’ the basic structure of the Constitution, and this does not mean that that Parliament cannot modify the Constitution. Therefore, adding an element to the existing reservation policy only modifiesthe basic structure of the Constitution rather than destroying it.
In her powerful speech, Smt. Kanimozhi had argued in the Rajya Sabha[page 206] that the Indra SawhneyJudgment bars economic reservation based solely on economic criterion[¶90]. However, a closer scrutiny of the Judgment would suggest that the Court made such an observation specifically in the context of Article 16(4):
“The concept of ‘weaker sections’ under Article 46 is different from that of the ‘backward class’ of citizens in Article 16(4), but the purpose of the two is different. … If this is borne in mind, the reasons why mere poverty or economic consideration cannot be a criterion for identifying the backward classes of citizens under Article 16(4) would be more clear.” [¶575, Manupatra edition].
Therefore, an observation of the Court specifically for Article 16(4) cannot be cross-cited to challenge Article 16(6) because the purpose of the latter is very clear, to treat economic backward upper castes as ‘backward’ for the purposes of the reservation. This also explains whythe Court previously struck down legislation providing reservation solely on economic ground, i.e. due to the absence of Constitutional backing.
Coming to the 50% limit on the reservation, in M. R. Balaji, Indra Sawhney[¶93] and M. Nagaraj,the Supreme Court has held that the percentage of reservation cannot exceed the threshold of 50% to strike a structure of egalitarian equality. However, one must note ¶322 of the Indra Sawhney Judgment wherein the 9-judge bench stated that this percentage can be exceeded for extraordinary circumstances.
Lastly, the reply to Kapil Sibal’s argument is present in the Amendment Act itself. The explanation toArticle 16(6) provides that:
“For the purpose of this article and article 16, ‘economically weaker sections’ shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.”
Therefore, the Amendment Act has entrusted the States to determine the values of indicators based on the specific data of the State to determine the eligibility for reservation.
Then, is the Amendment Act constitutionally tenable?
In his book Development as Freedom,Amartya Sen has argued in Chapter 4 that income deprivation, one of the factors for determining poverty, leads to deprivation of basic capabilities of an individual in terms of her freedom to perform actions that she values. Further, he has argued that if a person is relatively deprived in terms of his income, then she will be absolutely deprived in terms of her capabilities. This is because ina generally wealthy country, a lot more income is required to be spent to achieve the same level of social functioning. Given the fact that India’s richest 9 holds wealth equivalent to the bottom 50%,[The Oxfam Inequality Report 2019 released on 21.01.2019], the Amendment Act may be seen as a step forward to ensure that economically deprived citizens are made capable to enjoy their freedoms in an effective and real manner. It is interesting to note, however, that Amartya Sen himself has termed this piece of legislation an outcome of “muddled thinking”.
The Constitution also imbibes such values under Article 46, the fulfilment of which is one of the objects[page 217] of the Amendment Act:
“46. The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”
However, economic considerations cannot substitute constitutional requirements. We argue that the Amendment Act is hit by Article 14 of the Constitution, and thus would not survive judicial scrutiby. Article 14 allows reasonable classification based on intelligible differentia having nexus with the object sought. The Amendment Act intends to classify the population based on their economic position with a purpose to redress injustices based on economic inequalities. Here, a reasonable conclusion would be the availabilityof reservation to all those people who fallbelow the pre-determined indicators. Therefore, allowing the reservation for citizens other than classes mentioned in Articles 15(4), 15(5) and 16(4) is equivalent to treating such classes unequally based on their castes. Disallowing an economically deprived SC/ST/OBC is treating equals unequally, a notion not envisaged in the Constitution. Thus, the Amendment Act is constitutionally untenable in its present form.
Here, one might argue that the Amendment Act stikes a reasonable classification as SCs/STs/OBCs have already been provided reservation under Articles 15(4), 15(5) and 16(4). We present two counter-arguments against this proposition:
- The rationale for provisioning reservation under Articles 15(4), 15(5) and 16(4) isdifferent from the rationale underlined Articles 15(6) and 16(6), educational and social backwardness for the prior and economic backwardness for the latter. So, if a person qualifies for reservation under both the rationales, she cannot be deprived of one by citing her eligibility under other;
- The existing legal regime also warrants eligibility for reservation under two quotas. Domicile reservation, commonly used in admission to the medical colleges, is generally applied horizontally, thus making a domiciled SC/ST/OBC eligible under both, the domicile reservation and caste-based reservation.
Now, the Court shall have two routes from which to choose, either to strike down the Amendment Act or sever the clause that restricts the reservation provision only to upper castes. However, the latter shall result in a reservation of more than 50% for the ‘backward classes’ identified under Article 16(4) because now SCs, STs and OBCs shall be eligible for reservation under Articles 16(4) and Article 16(6), which the Government might fail to justify by using ‘compelling reasons’ argument. Breaching the limit of 50% for extending reservation for a separate class is different from breaching the limit of 50% to extend reservation to classes already enjoying the reservation. One might argue that in cases of domicile reservation, the courts have allowed to breach the limit of 50%. The Supreme Courthas held that domicile reservation, ranging to the extent of 70% as well, has a reasonable nexus attached – that the eligible candidates are likely to serve the State after their studies. Such a consideration isabsent in the present case. Therefore, the authors argue that the possible outcome ofthe litigation shall be a declaration of unconstitutionality.
An economic case can possibly be made for the Amendment Act. However, the need for constitutionalconformity demands a complete overhaul of the existing reservation policy. The existing legal setup also supports such reservation. The Right of Children to Free and Compulsory Education Act, 2009defines ‘child belonging to disadvantaged group’ as:
“a child belonging to … such other group having disadvantage owing to … economical … or other such factor, as may be specified by the appropriate Government, by notification.”
Also, we believe that reservation for economically disadvantaged sections is a positive step if it is restricted to the educationalinstitution. Inserting Article 16(6) to reserve government posts makes little sense, as the sole purpose for provisioning reservationin employment was to allow the underrepresented castes to hold a place in higher offices. Because an economically disadvantaged individual lacks adequate financial resources, providing reservation in educationalinstitutions shall address their economic-disability. There is no social discrimination to be addressed. Moreover, Article 16(6) is also against the Supreme Court judgment in M. Nagaraj [5-Judges Bench]:
“the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16would collapse.”
It is important to note that this observation is not specific to Article 16(4) but a general view of Article 16. Thus, owing to the absence of ‘inadequacy of representation’ factor, Article16(6) fails the constitutional test.
Anmol and Aditya are 3rd year BA LLB (Hons.) students at NLU Jodhpur
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