Economic Reservation :Constitution (103rd) Amendment Does Not Violate Basic Structure, Centre Tells SC

The Constitution(103rd) Amendment Act introducing Articles 15(6) and 16(6) in the Constitution to provide for economic reservation does not affect the basis structure of the Constitution, said the Centre in its affidavit filed in Supreme Court countering the petitions challenging economic reservation.

"Merely affecting or impinging upon an article embodying a feature that is part of the basic structure is not sufficient to declare an amendment unconstitutional. To sustain a challenge against a constitutional amendment, it must be shown that the very identity of the constitution has been altered", reads the affidavit of Centre. It is further stated that a mere amendment to an Article of the Constitution, even if embodying a basic feature, will not necessarily lead to a violation of the basic feature involved. 

It is asserted that the the newly inserted provisions of Article 15(6) and Article 16(6) are enabling provisions for advancement of the Economically Weaker Sections(EWS) and are in fact, in conformity with the principle of affirmative action. 

The challenge on the ground that EWS quota will breach 50% limit of reservation is rebutted by stating that this limit imposed by Supreme Court in Indira Sawhney case is not applicable after constitution amendment.

"conclusions drawn in Indra Sawhney (supra) are inapplicable to the present case as the said judgment was delivered while determining the constitutional validity of certain Office Memorandums issued by the Government of India in the year 1990", says the affidavit in this context.

The limit of 50% is only applicable to reservation made under Article 15(4), 15(5) and 16(4) and does not apply to Article 15(6) and 16(6).

The centre also negates the petitioners' argument that reservation cannot be provided only on the basis of economic criteria. It is highlighted that several Committees have been set up wherein quantifiable data has been collected highlighting the need for having reservation for the economically weaker sections of the society. Economic criteria has been held to be a relevant factor for determination of social and educational backwardness. 

It is stated that the indicators  used for identification of socio-economic backward classes cannot be used for identification of economically backward classes. Because, EWS classes are not homogenous, and secondly, they do not have a common criteria like that of castes, on the basis of which, economic backwardness can be evolved.

The affidavit refers to Sinho Commission Report, which had recommended amending the constitution to enable economic reservation. 

Accordingly, the Constitutional amendments were necessitated for providing opportunities in higher education and employment to those who have been excluded by virtue of their economic status. 

The constitutional amendment was brought in to promote social equality by providing opportunities in higher education and employment to those who have been excluded by virtue of their economic status. 

The challenge to this 103rd Constitutional Amendment in the top court has been made by the NGO Youth for Equality, Janhit Abhiyan,  political activist Tehseen Poonawala, Advocates Reepak Kansal and Pawan.

Both the Houses of the Parliament had passed the 124th constitutional amendment bill to provide 10 % reservation in public employment and higher education to the EWS on January 9 and enacted the Constitution (One Hundred and Third Amendment) Act, 2019 to enable the State to make reservation on the economic criterion alone.

The Act, by virtue of which Articles 15 and 16 stand amended, received the assent of the President on January 12 and was published in the Gazette on the same day.

The petitioners have placed reliance on the Maratha and Patidar quota cases where the apex court and several High Courts have struck down the reservations exceeding the 50% cap. "It is clear that the concept of reservation itself is not with reference to the economic status of a person but rather in context of the community to which he belongs, with an idea to integrate that community into the mainstream system of education and employment", it is further contended.