On January 9, 2019, the Government of India enacted the Constitution (one hundred and third Amendment) Act, to provide an extra 10% reservation cap to the economically weaker section (EWS) of the society in matters related to public employment and admissions in educational institutions. The bill received the presidential assent on 12 January 2019 making it a legislative act. The act amends article 15 and 16 of the Constitution of India.
Amendments made in the Constitution of India
According to the act, Article 15(6) shall be added in the Constitution of India which would allow the government to make special provisions for the advancement of any economically weaker section of citizens other than mentioned in clauses 4 and 5 of the article. It enables the state to make provisions in so far that it relates to their admissions in educational institutions including private institutions, whether aided or unaided by the State, except minority educational institutions covered in article 30(1). It also states that the reservations granted shall be subject to a maximum of 10% and in addition to the existing reservations(which was set to 50% by the Supreme Court of India).
Another amendment was made in Article 16 of the Constitution of India. After clause 5, a 6th clause is added which states that nothing in this article (that is Article 15) would prevent the state from making any provision for the reservation of appointments or posts in the favour of economically weaker sections of the citizens. In addition to this, the clause once again confirms that the reservation provided will be in addition to the existing reservations and will be subject to a 10% ceiling.
Besides above-mentioned amendments, an explanation states that the “economically weaker section (EWS)” shall be decided by the state from time to time based on “family income” and other “ indicators of economic disadvantage”.
Highlight and Significance of the act
- The Constitution amendment act 2019 is designed in such a way that it conforms a maximum of 10% of reservation for the economically weaker section ( that is poor from the upper caste people) in matters of higher education and public employment.
- The 10% cap will be in addition to the already set cap of 50% by the Supreme Court of India in the case of Indira Sawhney v Union of India making a total of 59.5% reservation for the depressed classes (SC, ST and OBCs) and now for the poor people belonging to upper caste.
- The Government of India in its reasons for enacting this act states that most people from economically weaker sections of the society have not been able to pursue higher education and public employment due to their financial constraints and incapacity to do so. Many upper caste people live in poverty and hunger. Therefore this act will address this longstanding issue and will ensure that the social and economic development of these people takes place.
- The government in its defence against the allegations also states that the act is in accordance with the provisions of the article 46( directive principles of state policy) of the Indian Constitution which urges to the government to make provisions to protect the educational and economical interest of the weaker section of the society.
Issues concerning The Constitutional amendment act 2019
More than 20 petitions have been filed challenging the Constitutional validity of the 103rd amendment act 2019. The most prominent ground on which the challenge has been made is that the act violates the fundamental right to equality granted in article 14 of the Constitution thereby neglecting the other depressed classes. Some other major issues challenging the validity that have been also mentioned in the petitions in the Supreme Court are:
- The reservation cannot be solely based on economic criteria as per the Supreme Court Judgement in Indira Sawhney In the case, the Supreme Court had quashed the decision of the Government to provide 10% reservation to the economically backward section.
- When it comes to economic backwardness then SCs, STs and OBCs also cannot be excluded since many of them are still not financially incapable. This will infringe their right to equality and therefore violates the basic structure of the Constitution(keshavnanda Bharti v union of India).
- One another major issue with the amendment act is that it introduces reservation which exceeds 50% ceiling limit set up by the Supreme Court in the landmark case of Indira Sawhney v Union of India. Until now the SCs and the STs enjoyed a total of 22.5% reservation and then later by the Mandal Commission recommendation the other backward classes(OBCs) were granted 27% reservation making it a total 49.5% reservation for the socially depressed classes. But now with the additional 10% reservation for the EWS category, the total reservation is 59.5% thus violating the 50% ceiling rule and thereby also violating the basic structure and the identity of the Constitution of India.
- Constitution (one hundred and third Amendment) Act, 2019.
This blog is written by Alok Dubey, Asian Law College.
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