Open Access Research Article
THE CONSTITUTIONALLY UNSOUND GAMBLE
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Article Details
THE CONSTITUTIONALLY UNSOUND GAMBLE
Authored By - Medhavi Capoor
BBA LLB
Section-E
“At the end of seventy-five years of our independence,
we need to revisit the system of reservation in the larger interest of the
society as a whole, as a step forward towards transformative constitutionalism.”
– Justice Bela M Trivedi[1]. Reservation is a system that is designed to provide
opportunities to historically marginalized and underrepresented groups in
society. It is a tool for promoting social justice and ensuring equal
representation. However, the use of economic criterion as the basis for
reservation is a controversial issue, with arguments both for and against it.
In this essay, I will argue that the use of economic criterion as the basis for
reservation is constitutionally unsound and goes against Supreme Court's
long-standing jurisprudence.
Articles of the Indian constitution
with regards to reservation & what it constitutes of:
The Indian Constitution provides for
reservation for certain groups in educational institutions and public
employment. The basis for such reservation is primarily social and educational
backwardness, and not economic backwardness. This is evident from the
Constitution itself, which refers to "backward classes" and not
"economically backward classes." The Constitution of India, under
Articles 14, 15(1), and 16(1), guarantees equality before the law and prohibits
discrimination based on religion, caste, sex, or place of birth. The
reservation system was introduced under Articles 15(4) and 16(4) to ensure the
representation of historically disadvantaged sections of the society, primarily
the Scheduled Castes, Scheduled Tribes, and Other Backward Classes. The
objective of these provisions is to provide social justice and equality of
opportunity to these groups and to establish parameters to eliminate
transgenerational and economic disadvantages that do not fall under other
welfare schemes offered by the Government of India.[2]
The introduction of the 103rd
amendment and cases argued:
The 103rd Amendment to the Indian
Constitution was passed in 2019 to provide 10% reservation in jobs and
educational institutions to economically weaker sections (EWS) of the society
who are not covered under any existing reservation schemes based on social or
educational backwardness. In the Supreme Court
judgement with regards to the Janhit Abhiyan v. Union of India 2022[3] case was to uphold the 103rd Amendment with a
3:2 majority. The Supreme Court of India has gone a little beyond its confines,
overturning the entire ceiling limit and allowing for a more flexible
interpretation, stating that adding 10% to the existing reservations does not
result in a violation of any essential feature of the Constitution and does not
harm the basic structure of the Indian Constitution. Yet, it will be
interesting to see how individuals react and whether this ruling serves as a
model for future attempts.
During the bill's passage in Parliament, most
political parties favoured it, while the opposition parties criticised the
Central Government for adopting the bill in haste without any debate or
consultation. Following that, several applications were filed in the Supreme Court
questioning the constitutionality of the legislation. It is suggested that
because economically poor sections have profited less from reservation in
employment policy than economically better off sections (which is not true),
caste should be replaced as a foundation for quota by economic criteria. If the
objection that reservation is not pro-poor is empirically unsustainable, the
idea that caste be replaced with economic factors is invalid.[4]
P. Wilson, a senior advocate, discusses
in his arguments against the amendment's legitimacy. Wilson contended that
the "weaker segment" mentioned in Article 46 is not the same as the
"weaker section" mentioned in Articles 15(6) and 16(6) of the
Constitution. Wilson attempted to rely on a seven-judge bench ruling in State
Of Kerala & Anr vs N. M. Thomas[5], to
argue that the 103rd amendment is an infiltration because Article 46 never
considered upper caste. Article 46 states “The State shall promote
with special care the educational and economic interests of the weaker sections
of the people, and, in particular, of the Scheduled Castes and the Scheduled
Tribes, and shall protect them from social injustice and all forms of
exploitation”[6]. His
argument contended that the individuals who were not the aimed beneficiaries
under the quota would now infiltrate the weaker sections category via Article
15(6) and Article 16(6).
The Supreme Court has consistently held that the
basis for reservation should be social and educational backwardness, and not
economic criteria and was seen to be debated in the landmark case of Indra
Sawhney v. Union of India[7].
The Court noted that economic criteria could not be the sole basis for
reservation, as it would be difficult to determine the extent of economic
backwardness. The Court also held that economic criteria were not a proxy for
social and educational backwardness. Opposing
the Supreme courts verdict, which validates the 103rd Amendment, DMK
spokesperson Manuraj Shunmugasundaram writes (Indian Express. November 11,
2022): “Reservation is not a poverty alleviation mechanism. Reservation was
always implemented to address representation or the lack thereof in educational
institutions and public employment. The Supreme Court has failed to recognize
that the 103rd Constitutional Amendment has relied on economic criteria to
extend reservations, something that has been expressly barred in law. In Indra
Sawhney vs Union (1992), it has been categorically held that in the
determination of backwardness, economic condition can never be the sole
criterion. The reason for this is that income is a variable factor and not a
structural or systematic tool for discrimination.”[8]
The Court further elaborated on its position in the
case of M. Nagaraj v. Union of India.[9]
The Court held that reservation could be made for economically backward
sections of society, but only in addition to reservation based on social and educational
backwardness. The Court noted that economic criteria could not be a substitute
for social and educational backwardness, as they were not inter-changeable.
In Jarnail
Singh vs Lachhmi Narain Gupta[10], 2018 it was held that those from the classes who
had positions in higher services such as IAS, IPS, and All India Services had
achieved a higher level of social advancement and economic status and were
hence not entitled to be classed as backward. Those individuals were to be
considered as the "creamy layer" without additional investigation.
Similarly, persons with sufficient income who are able to create work for
others should be considered to have attained a higher social rank and be
considered to be "beyond the Backward Class." The article claims that
the "creamy layer" is a judicially developed assessment based on
judicial hypotheses, and it will continue to analyse the "economic
component" that the government has already outlined in order to establish
EWS Reservations.[11]
Reading these judgments, a significant message is
being sent out that economic criteria is not a strong enough reservation to
stand alone but can in some cases be included along with social and educational
backwardness. It is imperative to have a deeper understanding regarding the
same as this topic is highly controversial and debatable in a country like
India. The provisions made regarding reservations have also been subject to misuse
by people who do not actually belong to the categories that apply to get into
schools/colleges. Making economic criteria as a basis for reservation would
create havoc in a developing country- India.
Shackles of the EWS criteria:
Many petitioners and Dr. Mohan Gopal who
represented them have also argued on the grounds of reservations being a tool
for representation and not that of financial upliftment. Senior Advocate
Meenakshi Arora expressed a similar sentiment, arguing that reservations under
Articles 15 and 16 of the Constitution were not intended to provide economic
assistance, but rather to address the backwardness caused by
"non-representation in the country." Advocate Shadan Farasat also
argued on similar grounds and submitted that originally, reservations were
granted solely on a "anti-discrimination basis", and not on a
"anti-depravation basis". He stated
that this was the fundamental structure that was being violated by the
amendment that granted reservations based on depravity.[12]
One of the main criticisms of the EWS reservation
is that it is not based on any sound constitutional principle. The Constitution
itself does not provide for reservation based on economic criteria, and the
Supreme Court has consistently held that such reservation is constitutionally
unsound. The EWS reservation also goes against the idea of affirmative action,
which is to provide opportunities to historically marginalized and
underrepresented groups in society. Economic criteria are not a proxy for
social and educational backwardness, and using them as the basis for
reservation would dilute the very purpose of affirmative action.[13]
In conclusion, the use of economic criterion
as the basis for reservation is constitutionally unsound and goes against
Supreme Court's long-standing jurisprudence. Reservation should be based on
social and educational backwardness, as this is the only way to ensure that
historically marginalized and underrepresented groups in society are provided
with equal opportunities. While economic criteria may be relevant in some
cases, they cannot be the sole basis for reservation. The landmark cases of
Indra Sawhney and M. Nagaraj provide a clear framework for reservation, and it
is important that this framework is followed in letter and spirit. The
objective of empowering each and every citizen of India with deserving
education and employment opportunities should not be done by categorizing
everyone into boxes that are waiting to be ticked off. The change will only be
seen when qualified sociologists and a proper legal team come together and develop
well-researched data showing the reservations that are truly needed and those
that have to be discarded. It is only when India starts making use of its young
minds to aid and facilitate the system will we see better days ahead.
[1] EWS reservation: Key quotes from judges, The Siasat Daily, November
07, 2022 https://www.siasat.com/ews-reservation-key-quotes-from-judges-2451566/
[2] THORAT, SUKHADEO, et al. “Prejudice against Reservation Policies: How
and Why?” Economic and Political Weekly, vol. 51, no. 8, 2016, pp.
61–69. JSTOR, http://www.jstor.org/stable/44004417.
Accessed 27 Feb. 2023
[3] WP (C) 55/2019
[4] THORAT, SUKHADEO, et al. “Prejudice against
Reservation Policies: How and Why?” Economic and Political Weekly,
vol. 51, no. 8, 2016, pp. 61–69. JSTOR,
http://www.jstor.org/stable/44004417. Accessed 11 Mar. 2023.
[5] 1976 AIR 490, 1976 SCR (1) 906
[6] EWS Quota is Against the Basic Structure of the Constitution,
Counsel aver Before the Supreme Court, NewsClick, March 12,2023
https://www.newsclick.in/EWS-quota-basic-structure-constitution-counsel-before-supreme-court
1992 Supp (3) SCC 217
[8] DMK's Manuraj Shunmugasundaram writes: EWS judgment is a
setback to social justice, India's constitutional scheme, The Indian Express,
November 11,2022 https://indianexpress.com/article/opinion/columns/dmk-manuraj-shunmugasundaram-supreme-court-ews-judgment-8260544/
[10] (2018) 10 SCC 396
[11] Singh, S. J. (n.d.). The creamy layer and reservation.
Imphal Free Press. Retrieved March 5, 2023, from https://www.ifp.co.in/opinion/the-creamy-layer-and-reservation
[12] EWS Reservation Day #2: Petitioners Argue that EWS Reservations
are a 'Constitutional Fraud', Supreme Court Observer,November 11, 2022
https://www.scobserver.in/reports/ews-reservation-2-petitioners-argue-that-ews-reservations-are-a-constitutional-fraud/
[13] Reservation
on an Economic Basis: Some Issues and Challenges, (2021) 15 NSLR 131
Article Information
THE CONSTITUTIONALLY UNSOUND GAMBLE
Authors: Medhavi Capoor
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/11
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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