This article has been written by Niti Shah studying BLS/LLB from Pravin Gandhi College of Law, University of Mumbai.
The Constitution Bill 2019, was introduced in the Lok Sabha on January 08, 2019, to provide reservation in higher education and public employment to ‘economically weaker sections’ of the society. The Bill was passed in the Lower House of the Parliament with only three members voting against it out of the 326 members present, and voting, and subsequently being passed by Rajya Sabha as well without any recommendations. After being approved by both the Houses of the Parliament. The President of India also gave his assent to the Bill, the Constitution Act, 2019, came into force with effect from January 14, 2019, as notified in the official gazette by the Central Government.
The passage of the amendment was very hurried hence it has raised many doubts regarding the intention of the government. Many people are questioning the democratic accountability has raised certain doubts on the intentions of the Government, questioning democratic accountability.
The Amendment (103rd Amendment)
The provisions that have been amended by the Constitution Act, 2019, are Articles 15 and 16 wherein Clause 6 has been inserted to the Articles as follows:
“In article 15 of the Constitution, after clause (5), the following clause shall be inserted, namely:
(6) Nothing in this article or sub-clause (g) of clause (1) of Article 19 or clause (2) of Article 29 shall prevent the State from making,—
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30, which in the case of reservation will be an addition to the already existing reservations and subject to a maximum of ten percent of the total seats in each category.
“In article 16 of the Constitution, after clause (5), the following clause shall be inserted, namely:—\
(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten percent of the posts in each category.
Explanation – Article 15 and Article 16, “economically weaker sections” shall be such as notified by the State on timely basis as there are many indicators which determine if one is economically weak or not.”
Eligibility Requirement set by the Government
Following is the eligibility criteria set by the government:
1.10% reservation to be provided for the economically backward section of the society
2. All the members of the family who together earn less than Rs.8 lakh per annum and all those who have less than five acres of agricultural land will qualify for the same.
3. Individuals whose families own more agricultural land, or any residential flat or area of 1000 sq. ft or larger or a residential plot of area 100 yards or 200 yards or more the same will be notified to the municipality, those people will not qualify for the same
4. It covers people from communities like Muslims, Sikhs, Christian, Buddhists, and other minority communities.
The quota will be over and above the existing 50% reservation to the SC-ST and OBC.
A non-governmental organization named Youth for equality and several others have challenged the amendment by way of the petition because the amendment violates the basic structure of the constitution and it exceeds the capping of fifty percent as fixed for reservations by the Apex Court.
As there is a contradiction with the provisions of articles 15 and 16 hence it is argued that it violates the constitutional amendment 103rd. Moreover, the amendment provides for a ten percent economic reservation over and above the existing reservations, which implies that the reservation would exceed the 50 percent capping as set up by judicial precedents because the present status of reservation quota has already reached 50 percent. Another argument of challenging the constitutionality of the amendment is that of arbitrariness.
The definition of “economically weaker sections” is unpredictable in the sense that it does not specifically provide as to what constitutes ‘other indicators of economic disadvantage’ and the definition is left for the state to be made assumptions from time to time.
Basic Structure Doctrine
In the case of I.C. Golaknath v. the State of Punjab, the Supreme Court has been saying that any provisions of the Constitution of India, which also includes the Fundamental Rights, could be amended by passing an act called as the Constitution Amendment Act, according to the Article 368. In the case of Golaknath, the previous decisions were overruled and it was also held that the Fundamental Rights which are contained in Part III of the Constitution. These fundamental rights will be excluded from the power of amendment by Article 368, thereby making the Fundamental Rights not amendable.
A full bench was established for the case of Kesavananda Bharati v. the State of Kerala, in which the “basic structure doctrine” was laid down by the Hon’ble Supreme Court of India, overruling the judgment of Golaknath in 1967. According to this doctrine, the objectives specified in the Preamble, make up for the basic structure of the Constitution and it cannot be amended for the exercise of the powers conferred under Article 368 of the Constitution. Any amendment of the Constitution which affects the basic structure is liable to be interfered with by the Court on such a ground. As the question is as to what is a ‘basic feature’ and it would be determined by the Court and in each case that comes after this case After the Kesavananda Judgment, a large number of features have been considered as the basic feature of the Constitution by various judgments.
An understanding of the basic structure doctrine makes it clear that all it requires is a basic feature, equality, and it is difficult to see how the economic reservations would damage or destroy the concept of equality. Article 15(6) and 16(6) has been formulated to eliminate discrimination based on economic status, allowing the section of people who are deprived of adequate representations in the educational institutions or jobs, hence striving towards equality and not challenging the basic structure.
The framers of the Indian Constitution, at the time of drafting the Constitution, always kept in mind the prevalent state of affairs that adversely affected the equality of the country. There has been an outsized number of underprivileged sections of individuals who have experienced social discrimination throughout their lives because they were always under the garb of the caste system and therefore the members of such so-called lower classes required an adequate representation within the society. Efforts have been made to bring these weaker sections at par with the opposite sections of the society through the policy of reservations, which is taken into account considering as positive or protective discrimination implemented in the Constitution. As the changing times today, caste no longer is the sole criterion for detecting socially backward classes because some of them have achieved economic status, thereby finding a social standing as well. However, even today poverty has always remained a barrier to attain equality because there is significant discrimination between the people of different economic statuses. The Government has through this step has taken a step ahead to eradicate this form of discrimination as it is a way of achieving equality in the nation.
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