Q. The 103rd Constitution Amendment Act
(124th Amendment Bill) amends article 15 to add (6) which provides a 10% reservation for the economically weaker section in education institutions- aided and unaided, except minority institutions. Such a reservation by the executive was struck down during the Indira Sawhney judgment.
- The reservation of up to 10% for the EWS will be in addition to the existing reservation cap of 50% reservation for SC, ST, and OBCs. The central government will notify the “economically weaker sections” of citizens on the basis of family income and other indicators of economic disadvantage.
- The various indicators include:
- People who have an annual family income of less than 8 lakh.
- People who own less than 5 acres of farmland.
- People who have houses less than 1000 sq. Ft. In a town or less than that 100 sq. Yards in a notified municipal area.
- In the five-judge bench in Nagaraj Case (2006), the court upheld the constitutional validity of the amendments. But it also said that for providing quota in promotions the states must provide:
- quantifiable data on the backwardness of Scheduled Castes (SC) and Scheduled Tribes (ST)
- facts about their inadequate representation
- overall administrative efficiency
- not breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely
Many of these parameters stand breached by the 103rd Amendment Act:
- First, the spirit of these new exceptions made to Articles 15 and 16 is not in line with the vision of the framers. The purpose of creating exceptions to equal protection, equal opportunity, and non-discrimination was to dismantle centuries-old oppression that the caste system inflicted on certain groups. The Constitution only talks of social and educational backwardness and the EWS may be seen as violative of the same.
- The depressed classes of SC, ST, and OBC suffer from deprivation on multiple fronts which can’t be only talked of in terms of economic backwardness.
- The Amendment enables a fundamentally flawed policy. Only 4% of families in India show an annual income of above 8 lakh per annum as per the National Sample Survey. Approximately 85% of families have land holdings below 5 acres and except a select few, all live in the residential building below the cutoff.
- The Amendment was rushed and not examined by any committee or called for any comments by experts or the public view. It further breached the 50% limit set by the Indira Sawhney judgment.
However there are arguments in favor as well,
- Economic deprivations have seen as poverty forms basis for differential treatment by the State in many ways.
- Poverty inflicts severe disadvantages and the State can use special measures such as reservation to correct the same.
- The government has sought protection under Article 46 of the Directive Principles of State Policy which asks the State to safeguard the educational and economic interests of the weaker sections of the society.
- The 50% limit has been breached by states like Tamil Nadu and the Supreme Court is yet to decide on its validity. Further, the limit is purely a judicial innovation and finds no mention in the Constitutional text.
- Further important sections like the Indian Muslims who suffer from educational and economic deprivation as per the Sachar commission may benefit from this new innovation.
The majority in the Indira Sawhney case invokes the idea of balancing equality of opportunity of backward classes against that enjoyed by the rest of the society. While it is important to ensure to rights of the deprived long term solutions like an expansion of education, creation of job opportunities and skill development are needed to complement the same.