SEVENTH DURGA DAS BASU ESSAY WRITING

COMPETITION

January-February 2019

Organised by the Constitutional Law Society under the aegis of

West Bengal National University of Juridical Sciences, Kolkata

TOPIC: “THE DEBATE ON RESERVATION FOR

ECONOMICALLY MARGINALIZED: CONSTITUTIONALLY
JUSTIFIABLE?”

TARANJIT SINGH – SYMBIOSIS LAW SCHOOL, PUNE (2ND

YEAR BA LLB 2017-22 BATCH)
LUCA GEORGE N. ANTONY – SYMBIOSIS LAW SCHOOL,
PUNE (2ND YEAR BA LLB 2017-22 BATCH)
INTRODUCTION

The Indian society is divided due to various factors that have permeated the society, ranging not
only from social factors but also including economic conditions. In order to curb these divisions,
the Indian Constitution provides for various safeguards and rights in favour of people belonging
to such socially or economically deprived classes. These safeguards include extreme affirmative
action provisions such as Reservations for the Backward Classes, which has long been a heated
subject amongst the Indian polity.

It becomes especially problematic as the policy of reservation is excluding in nature as it limits the
number of seats thereby increasing the competition faced by the general category on the basis of
merit.

Before the 124th Amendment Bill of 2019 received the assent of the President of India, a 50% cap
on the total number of reservations reassured the general category of availability of opportunities.
This however changed following the amendment, igniting public interest once again, in relation to
the Reservation Scheme due the addition of an extra 10 % of reservation in all educational institutes
and public offices.

The debate on reservation to the Economically Weaker Section (EWS) does not only include the
question of increased competition for General category but it also involves proving whether such
reservation is aligned with the original intent of the constitutional makers. Most importantly, with
reference to the reach of such provisions, the reality that such provisions shall be availed by richest
amongst the poor and not by such classes of people the said provisions are envisaged for.
124TH CONSTITUTIONAL AMENDMENT

The 124th Amendment Bill, 2019 was passed by the parliament of India in a record time on 9th
January 2019 and it received the assent of the President on 12th January 2019. The bill provides
for the adding of Article 15 subsection 6 and Article 16 subsection 6.

Brief details of the Amended Articles

Article 15 (6) provides the State with a mandate to make special provisions for the advancement
of any economically weaker sections of citizen, further it also provides for the mandate to have
reservations for such citizens, not exceeding 10% but in addition to the existing reservation.

Article 16 (6) provides the State with the mandate to have reservation for such citizens further, in
all public employment posts, again not exceeding 10% but in addition to the existing reservation.

Statement of Objects and Reason

The legislature states the exclusion of the economically weaker sections from educational and
employment opportunities due to their economic incapability as a reason to have reservations for
them. Further, the amendment aims to fulfil the commitments of the directive principles of state
policy under Article 46, to promote the educational and economic interests of the weaker sections
of the society.

EQUALITY CODE OF THE CONSTITUTION

The equality code as envisaged by the Constitution of India is explained below. It’s important to
analyze the same with regards to understanding reservations better.

Through Article 15 they declared in positive terms that the State shall not discriminate against any
citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. With a view
to eradicate certain prevalent undesirable practices it was declared in clause (2) of Article 15 that
no citizen shall on the grounds only of religion, race, caste, sex, place of birth or any of them be
subject to any disability, liability, restriction or condition with regard to access to shops, public
restaurants, hotels and place of public entertainment, or to the use of wells, tanks, bathing ghats,
roads and places of public resort maintained wholly or partly out of State funds or dedicated to the
use of the general public. At the same time, with a view to ameliorate the conditions of women
and children a provision was made in clause (3) that nothing in the said article shall prevent the
State from making any special provision for women and children.

Besides the means of livelihood, special care was taken to declare equality of opportunity in the
matter of public employment by Article 16. Clause (1) expressly declares that in the matter of
public employment or appointment to any office under the State, citizens of this country shall have
equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter
on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.
At the same time, care was taken to declare in clause (4) that nothing in the said article shall prevent
the State from making any provision for reservation of appointments or posts in favour of any
backward class of citizens which in the opinion of the State is not adequately represented in the
services under the State. Article 17 abolishes untouchability while Article 18 prohibits conferring
of any titles (not representing military or academic distinction). It also prohibits the citizens of this
country from accepting any title from a foreign State.

The other provisions of the Constitution having a bearing on Article 16 are Articles 38, 46 and the
set of articles in Part XVI. Clause (1) of Article 38 obligates the State to “strive to promote the
welfare of the people by securing and protecting as effectively as it may a social order in which
justice, social, economic and political, shall inform all the institutions of national life”.

Part XVI of the Constitution contains “special provisions relating to certain classes”. The “classes”
for which special provisions are made are, Scheduled Castes, Scheduled Tribes and the Anglo-
Indian community. It also provides for appointment of a Commission to investigate the conditions
of and the difficulties faced by the socially and educationally backward classes and to make
appropriate recommendations.

Sometimes it is necessary to treat people differently in order to ensure that they can enjoy equal
rights. Certain differences between people may have to be taken into account for this purpose

Affirmative action is based on the idea that it is not sufficient to establish formal equality by law.
When we wish to eliminate inequalities that are deeply rooted, it is necessary to take some more
positive measures to minimise and eliminate entrenched forms of social inequalities. Most policies
of affirmative action are thus designed to correct the cumulative effect of past inequalities.
INDIRA SAWHNEY V. U.O.I

In respect to the 124th Amendment it becomes really important to look at the case of Indira
Sawhney v. U.O.I1. It is important as it was a 9 Judge Constitutional Bench, with the majority
judgment pronounced by B.P Jeevan Reddy, J. (on behalf of Kania, CJ., Venkatachaliah J.,
Ahmadi J. and himself). The issues taken up by the 9 Judge Bench pertaining to the present
amendment were whether the backward classes can be identified only band exclusively with
reference to economic criteria? And whether total number of reservations could exceed the 50%
cap?

The answer given to the first question was in negative according to the majority verdict, although
even in that scenario the precedent is not broken by the present amendment. This is due a simple
fact that at the time the Constitutional Mechanism did not provide for any reservation on the basis
of a person belonging to EWS. Now the Constitution, through the amendment, has provided 10
per cent reservation for EWS and also, through the amendment, EWS is being defined in the
Constitution with respect to the income limit and other assets.

Further, the question of providing more than 50% reservation was upheld although it was allowed
to exceed the limit in certain extra ordinary situations. Considering that the definiton for extra
ordinary situation is absent, it again becomes easy for the present amendment to pass the legal test
when it comes to the precedent set by the Constitutional Bench.

CONSTITUTIONAL VALIDITY: BASIC STRUCTURE CHALLENGE

Basic Structure Challenge

In order to deal with the issue of Constitutional Validity of a particular amendment we shall be
analyzing the amendment through a Basic Structure Challenge.

1
AIR 1993 SC 477
Validity of the Challenge

Keeping in mind that in the landmark case of Kesavananda Bharti v. UOI2 the majority verdict
held Fundamental Rights, i.e. Chapter III forms a part of the Basic Structure of the Constitution.
Hence, as the present amendment is to Chapter-III, it will have to stand a basic structure challenge.

Reservation under Basic Structure

One of the most important factors when it comes to test the validity of any law, is the intent of
legislature behind the same. Reservations are one such policy that have been in use by the
Legislature since the independence of the nation, hence the real intent behind bringing in
Reservation lies in the Constituent Debates. Further on considering that the enabling provision for
providing Reservations rests in Chapter III of the Constitution, providing of Reservations also
becomes a part of the Basic Structure and hence here the intent of the legislature behind providing
reservations also becomes a part of the Basic Structure, which cannot be violated by the present
amendment.

The debates in Constituent Assembly can be relied upon as an aid to interpretation of a

constitutional provision is borne out by a series of decisions of this3, 1018 : (1969) 3 SCR 154] ;
Golaknath v. State of Punjab4 (Subba Rao, CJ); opinion of Sikri, CJ, in Union of India v. H.S.
Dhillon5 and the several opinions in Kesavananda Bharati6 where the relevance of these debates is
pointed out, emphasing at the same time, the extent to which and the purpose for which they can
be referred to

Intent of Legislature: Constituent Assembly Debates

In relation to the question of providing reservation for such economically backwards classes as
specified in the Amendment and its constitutional validity thereof, it is essential to apply the
original intent of the legislature at the time of drafting the provisions relating to reservation in
legislature, educational institutions and public offices. Article 10 of the draft of the constitution of
India right (now corresponds to Article 16) was the first-time reservation for unrepresented classes

2
(1973) 4 SCC 225: 1973 Supp 1 SCR 1
3
AIR 1969 SC 1014
4
AIR 1967 SC 1643 : (1967) 2 SCR 762
5
(1971) 2 SCC 779 : (1972) 2 SCR 33
6
(1973) 4 SCC 225: 1973 Supp 1 SCR 1
was recognised as a fundamental right. The Article provided for equality of opportunity, with the
absence of discrimination on grounds such as religion, race, caste, sex, descent, place of birth with
the inclusion of providing reservation to the inadequately represented classes of citizens
notwithstanding the prohibition of discrimination. The clause (3) of the mentioned article attracted
heavy opposition at the time of drafting as the said clause essentially took away posts that
candidates meritoriously deserved.

The right to equality and equality of opportunity as provided by the constitution as fundamental
rights were contested as grounds for opposing this provision of reservation. In response to such
contentions, Dr. B R Ambedkar, the Chairman of the drafting committee, provided a clear reply
substantiating the requirement of such a provision which is quoted herein: “there are three points
of view which it is necessary for us to reconcile if we are to produce a workable proposition which
will be accepted by all. Of the three points of view, the first is that there shall be equality of
opportunity for all citizens. It is the desire of many members of this house that every individual
who is qualified for a particular post should be free to apply for that post, to sit for examinations
and to have his qualifications tested so as to determine whether he is fit for the post or not and that
there ought to be no limitations, there ought to be hindrance in the operation of this principle of
equality of opportunity. The other view is that there ought to be no reservations of any sort for any
class or community keeping every individual on the same footing. Then we have quite a massive
opinion which insists that, although theoretically it is good to have the principle that there shall be
equality of opportunity, there must be at the same time a provisions made for the entry of certain
communities which have so far been outside the administration. These three interests are
reconciled in the Article 10 of the Constitution.” The depressed classes in India present definite
problem in the political and social evolution. They are the resultants of historical forces, religious,
economic and social. They are the embodiment of exploded social ideas and the disabilities
imposed on them original framers of Hindu polity have been aggravated by long centuries of
segregation and neglect. The only atonement for this is to acknowledge their rights and to return
the same to them. It is then evident that this principle arose as a form of distributive justice.

The second problem that arose at the time of the drafting and continued to require consideration
with the evolution of the principle of socio-economic justice and the expanding horizons of the
fundamental rights, was the accurate definition of ‘backward classes’, the beneficiaries of such
provisions. Originally, Article 10 of the draft of the constitution of India, did not include the
qualification of backwardness. But the framers of the Constitution envisaged upliftment of those
classes of persons whose conditions were similar to the plight of the Schedule Castes. This
substantially involved the consideration of Caste, but the intent of the legislature was to provide
concessions to all those people in the form of affirmative action whose conditions were comparable
to the Schedule Castes. K.M. Munshi contended that the following quoted: “It is perfectly clear
that the word 'Backward' signifies that class of people - does not matter whether you call them
untouchable or touchable, belonging to this community or that a class of people who are so
backward that special protection is required in the services". He added: "we need not, therefore,
define or restrict the scope of the word 'backward' to a particular community. Whosoever is
backward will be covered by it...". Following the conditions of economically backward section
will be compared to the same, and it will become evident that in today’s time such reservation is
of more relevant importance.

The third consideration of the constituent assembly was the very nature of reservation and its
extent. Ambedkar was emphatic on this point, stating the quoted: "if reservations were made for a
community or a collection of communities the total of which came to something like 70 per cent
of the total posts under the state and only 30 per cent are retained as the unreserved, could anybody
say that the reservation of 30 percent as open to general competition would be satisfactory from
the point of view of giving effect to the first principle, namely that there shall be equality of
opportunity? It cannot be, in my judgement. Therefore, the seats to be reserved, if the reservation
is to be consistent with sub clause (i) of Article 10, must be confined to a minority of seats. It is
then only that the first principle could find its place in the constitution and effective in operation.

In this way the legislature envisaged an equality code with provisions providing for affirmative
action to be taken.

Summarizing: After a thorough reading of the Constituent Assembly Debate, we can come to a
fair analysis that the intent of the legislature behind providing Reservations has always been to
eliminate the systematic social discrimination prevalent in the society and not purely economic
based criteria. Economic disadvantage has always been taken to be a part of Social disadvantage
when it comes to providing Reservations. Even a provision for having a further economical limit
in the reservation provided to Socially and Educationally Backward Classes stands in concurrence
with the intent of the legislature. Although having a pure economical criterion for reservations
becomes problematic.

Upper Caste Hindu

This problem can be better understood when we get the EWS upper caste Hindus into the scenario.

In response to the burden of social stigma and economic backwardness borne by persons belonging
to some of India’s castes, the Constitution of India allows for special provisions for members of
these castes. Articles 341 and 342 of the Constitution include a list of castes and tribes entitled to
such provisions; all the groups included in this list — and subsequent modifications to it — are
referred to as Scheduled Castes (SC) and Scheduled Tribes (ST). These special provisions have
taken two main forms: action against adverse discrimination towards persons from the SC and the
ST; and compensatory discrimination in favour of persons from the SC and the ST. Compensatory
discrimination has taken the form of guaranteeing seats in national and state legislatures and in
village panchayats, places in educational institutions, and the reservation of a certain proportion
of government jobs for the SC and the ST. The 103rd amendment to the constitution of India has
essentially affected these interests of the classes that were provided such reservation. By giving
effect to an additional 10% of reservation to the economically weaker section, the said amendment
has affected the real time rights of the individuals belonging to these classes that have been
provided with such reservation.

By adding the said 10% reservation for the economically backward classes, the proportionate seats
are taken away from the general category. This in turn affects the total seats available for the
general category individuals as well as indirectly affecting the seats reserved for the SC, ST and
OBCs. To clarify, this augmented reservation will affect the total number of persons that will be
provided a seat on the basis of merit. Included in this total number of persons that will be provided
a seat on the basis of merit, are the individuals of the SC, ST and OBCs categories. A fewer amount
of seats will mean a lesser number of individuals acquiring such seats causing in the process, fewer
meritorious individuals coming from the SC, ST and OBC categories to acquire such seats. This
in turn will cause such specified meritorious candidates coming from the SC, ST and OBC
categories to avail the reservation provided for their respective categories. The final effect of the
addition of 10% reservation for the Economically Backward Section is the taking away the
opportunity of participation from the lowest strata of the SC, ST and OBC categories.
Whereas it is the intent of the legislature to uplift such weaker sections of society so as to raise the
standard of living of certain classes of society have been living in pitiful conditions aggravated by
poverty, the most important consideration or objective of the legislature was to compensate the
classes of people, enumerated in the Constitution of India as SC, ST and OBCs of historical
discrimination. The fundamental objective is to provide to such communities a way out of the
plight that the Indian Society has inflicted on them over time. Shri T.V. Muniswami Pillai of
Madras said that "In the great upheaval of making a Constitution for this country, I feel that the
communities that have not enjoyed the leaves and fishes of the services should not be left out. It is
for this purpose, I gave notice of an amendment and a further amendment signed by more than
fifty members which has been presented to this House, but for reasons well known to you. I
specially mean the scheduled caste are given a chance, unless there is an assurance that these
communities will at all times be taken into account and given enough and more chance in
appointments, their uplift will still stand over. I may tell this House that it is not the object of any
of the leaders of the Harijan community to perpetuate the communal bogey in this land for ever,
but so long as they remain so backward in getting admission into the services it is highly necessary
that they must be given some protection" Almost seven decades ago when reservation was
considered unanimously in the Indian Parliament, it was in context of the suppressed and oppressed
class of the society. It has a historical and social past. Affirmative action through quota was
restricted to those class which have for centuries been subjected to atrocities and oppression
socially… Overall, the backwardness was based on social and educational criteria, which has
sanction in the Constitution. If we consider the aspect politically, scheduled caste community is
not represented anywhere if no reservation of seats is given. If the qualifications for Harijan
candidates are not relaxed, our candidate will not be able to compete with the candidates of the
Brahmin Community or the so called Suvarna Hindus.”

The abolition of the caste system seems, however an ideal which is not likely to be realized except
in the dim and distant future; and to those who hope for the weakening of its hold upon the people
it is disappointing to find that candidates for election to the legislature of one province solicit the
votes of their caste men simply on the strength of caste fellowship without regard to other
considerations, that a solid caste vote has determined the result of some elections, and that there
has been a tendency in the legislature itself for groups to be formed on caste lines. But such
safeguards are required. Taking away a percentage of reservation given as a way of compensation
for the horrible discrimination for the course of history. The reaching of what such communities
were given as a compensation for all their hardships, to persons that caused such hardships is
borderline disrespectful to such communities.

The present amendment creates a further burden on the already backward classes by effectively
decreasing the total number of seats for them and further, most importantly considering the
circumstances of the EWS citizens in India, the present scheme is hardly going to benefit them,
whereas on the same hand it will provide Upper Caste Hindus a free ticket to Reservation, which
was not for them in the first place.

CONCLUSION

In conclusion, considering that the present amendment does not break any precedent set up by the
previous Constitutional Bench, the other step it has to take in order to be established as not being
violative of the Constitution is passing the Basic Structure Test. Considering that reservations are
in place since the independence of India, intent of legislature behind providing the same can only
be based upon the Constituent Assembly Debates, which envisaged Reservation to be a policy
based solely to break the systematic social hierarchy prevalent in the nation and not to curb the
economic disadvantage of the citizens. The present amendment is a classic case of problem
solution mismatch, where the real solution to uplifting the EWS lies in other milder special
provisions such as concessions, scholarships, aid, etc and not Reservations.

Another aspect to the situation here in is the decreased pressure on the Government to bring out
real poverty alleviation programmes for the poor. Considering the nearing general elections, it
seems to be more of a political maneuver to mislead the poor into believing that they shall get the
real benefit of these reservations, whereas the case as we analyzed will be the total opposite.

Lastly, considering the number of EWS citizens it becomes virtually impossible to provide for the
real incentive to the real poor. The whole process further disincentivizes the poor to come out of
their situation and creates a vicious cycle of sorts for them. It also opens a loophole for the
executive to manipulate, considering that the precedent set in the Indira Sawhney Case now stands
defeated, a 50% cap does not exist, hence the Executive can increase the reservation to any such
amount that they like.
In all, the present amendment according to the Basic Structure Challenge won’t strand valid and
does more harm to the weaker section than any benefit.