- Prelims:EWS, Article 15, Article 16, 103rd Constitution Amendment Act, Indra Sawhney etc
- Mains GS Paper II:Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc
ARTICLE HIGHLIGHTS
- The 103rd Constitution Amendment Act introducing special measures and reservations for ‘economically weaker sections’ (EWS)has been perceived as being unconstitutional.
INSIGHTS ON THE ISSUE
Context
EWS:
- The 10% EWS quotawas introduced under the 103rd Constitution (Amendment) Act, 2019 by amending Articles 15 and 16.
- It inserted Article 15 (6) and Article 16 (6).
- Economic reservation in jobs and admissions in educational institutes for Economically Weaker Sections (EWS).
Special measures:
- Article 15: Enabling the state to take special measures (not limited to reservations) in favor of EWS generally with an explicit sub-article on admissions to educational institutions with maximum 10% reservations.
- Article 16: It allows 10% reservations (and not special measures) for EWS in public employment.
Basis of Challenge:
- It violates the basic structure of the Constitution:Special protections guaranteed to socially disadvantaged groups is part of the basic structure
- The 103rd Amendment departs from this by promising special protections on the sole basis of economic status.
- Reservation at 50 per cent:It violates the Supreme Court’s ruling in Indra Sawhney & Ors v Union(1992) of India, which upheld the Mandal report and capped reservations at 50 per cent.
- Private, unaided educational institutions: The fundamental right to practise a trade/ profession is violated when the state compels them to implement its reservation policy and admit students on any criteria other than merit.
Challenges:
- Economically weaker sections’: Determined by the state on the basis of ‘family income’ and other economic indicators.
- Exclusionof SC/STs, OBCs and other beneficiary groups.
- Inadequate data:The governments have no such data to prove that ‘upper’ caste individuals, having income less than Rs 8 lakh annual income, are not adequately represented in government jobs and higher educational institutions.
- Article 16(4) verses Article 16(6): The amendment through Article 16(6) ends up making it easier for the state to provide reservations in public employment for EWS than the requirements to provide reservations for ‘backward classes’ under Article 16(4).
Judiciary stand on reservation:
- Indra Sawhney (1992): 10% reservations based purely on economic criteria was unconstitutional.
- Income/property holdings cannot be the basis for exclusion from government jobs.
Does it violate Basic structure doctrine?
- Difficult argument: that measures purely on economic criteria are per se violative of the ‘basic structure.
- Economic criteria (if seen as poverty):Poverty inflicts serious disadvantages and the prerogative of the state to use special measures/ reservations as one of the means to address it is unlikely to be violative of the ‘basic structure’ doctrine.
Basic Structure of Constitution:
- The Kesavananda Bharati judgment(1973) introduced the Basic Structure doctrine which limited Parliament’s powerto make drastic amendments that may affect the core values enshrined in the Constitution like secularism and federalism
Way Forward
- Indra Sawhney case: The majority of judges held that the 50% ceiling must be the general rule and a higher proportion may be possible in ‘extraordinary situations’.
- Indra Sawhney: It also invokes the idea of balancing the equality of opportunity of backward classes ‘against’ the right to equality of everyone else.
- constitutional amendment: It might survive the ‘basic structure’ test, the hardest test for governments will be the manner in which they give effect to the amendment.
- Constitutional question: To justify that an individual ‘below poverty line’ and another with a family income of ₹8 lakh per annum belong to the same group for purposes of affirmative action will involve constitutional jugglery(tricky) at an unprecedented level.
QUESTION FOR PRACTICE
- To what extent, in your view, the Parliament is able to ensure accountability of the executive in India?(UPSC 2021)
(200 WORDS, 10 MARKS)
