Q) What is 103 constitutional amendment act? Does the Use of income criterion alone for quotas justiciable? Discuss
Constitution Bench of the Supreme Court, in a 3:2 majority decision, upheld the validity of the 103rd Constitutional Amendment, which provides 10% reservation in government jobs and educational institutions to the Economically Weaker Sections (EWS) of society. Highlights:
- It excludes the “poorest of poor” among Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Educationally Backward Classes (SEBC) and Other Backward Classes (OBC) from its scope
- For the first time, it has upheld a kind of reservation that specifically excludes those from the three existing categories of beneficiaries and is extended solely on the basis of economic criteria
- A person or a family whose total income is less than `8 lakh per annum and is not availing any other reservation
- The 103rd amendment provides 10%reservation for the EWS in admissions to educational institutions and government jobs. It inserted Article 15 (6) and Article 16 (6).
- Majority View: Reservation singularly on economic criterion does not violate the basics structure . It is an instrument of affirmative action by the state for an egalitarian society
- Minority view : Reservation is a powerful tool to enable equal opportunity and equal access . Introducing economic basis is permissible ,yet the othering of socially and educationally disadvantages classes will amount to heaping injustice based on their past disability
- in Indra Sawhney (1992), a nine-judge Bench upheld OBC reservation, but favoured exclusion of advanced sections of the beneficiary communities from its purview, it introduced a form of economic criteria for the first time.
- However, the criteria were used to exclude individuals, while the groups continued to be eligible for reservation
- Backward classes under Article 16(4) cannot be identified on the basis of economic criteria but the caste system also needs to be considered.
- Backward classes in article 16(4) were different from the socially and educationally backward mentioned in Article 15(4).
- Creamy layer was laid down and it was directed that such a creamy layer be excluded while identifying backward classes.
- Reservation shall not exceed 50 percent, moreover, reservation in promotions shall not be allowed.
- Judgement ruled that 50% rule formed by the Supreme Court in the Indira Sawhney judgment in 1992 was “not infexible”. Further, it had applied only to SC/ST/SEBC/OBC communities and not the general category
- Including the SC/ST/OBC/SEBC communities, on the ground that they already enjoy the benefits of a pre-existing 50% reservation on the basis of their caste and class origins, accounts to double benefits
- The logic behind this scheme of affirmative action was that reservation is a tool of reparation for groups excluded from mainstream avenues of advancement due to caste discrimination, while it should not become a benefit or reward for individual members of the same groups who may have made reasonable progress.
- The EWS quota is essentially a form of social justice for the economically marginalised.
- It is to boost for “mission” to provide social justice to the country’s poor which is one of the principle of preamble
- Prescribed, for the special provisions in respect of the reservations and representations provided in Article 15 and Article 16 of the Constitution, it could be a leading to an egalitarian, casteless and classless society.
- The resort to economic or income criterion as the sole marker for identifying a beneficiary is obviously unsustainable from the point of view of equality of opportunity(Article 14 and 15).
- Exclusion of groups that already enjoy reservation from accessing this new form of affirmative action violates the equality norm which is a basic feature of the Constitution.
- This approach is clearly flawed because this creates a vertical reservation scheme based on economic weakness, a factor that could be applicable to all communities, but consciously excludes a large segment
- The objective of economic emancipation could have been better achieved if the income-based reservation had been thrown open to all sections of society
- The Government should consider both opening up the EWS quota to all communities and keeping the income criterion much lower than the ceiling perhaps at the same level as the income tax slab, to identify the ‘creamy layer’ so that some poorer sections of communities, if they are crowded out on the OBC or SC/ST merit list, could still avail of some residual benefits under the EWS scheme