Millennium Post

The quota conundrum

Sayan Mukherjee & Shashank Shekhar discuss whether the 103rd constitutional amendment which provides for 10 per cent quota can survive judicial scrutiny or not

The 103rd constitutional amendment act, 2019 seeks to enable the government for making special provisions (including 10 per cent reservation) for economically weaker sections of citizens falling outside the already reserved categories (EWS), in relation to admission in educational institutions. It also enables the government to reserve 10 per cent seats for EWS over appointments in government services. The amendment has been challenged on the ground that equality and non-discrimination is a basic feature of the Constitution, and the 50 per cent cap on reservation put by the court in Indra Sawhney vs. Union of India protects this basic feature. Therefore, an amendment that seeks to transgress this limit is not permissible. It is further alleged that, as observed by the court in Indra Sawhney, a classification solely on the ground of economic conditions is unconstitutional.

However, from the trend of the judicial decisions on constitutional amendments, these grounds of challenge seem untenable. That is because the standard of review of a constitutional amendment for violation of basic structure is not strict at all. The test that the court applies to decide on the validity of an amendment is whether such amendment changes the "identity of the Constitution". The court has identified some of the broad constitutional principles such as equality, secularism, democracy, federalism, judicial review etc., that constitutes this identity. Unless an amendment completely obliterates these principles or constitutes an infringement so grave as to have the effect of rendering these principles meaningless, an amendment is a valid amendment. So, even if an amendment curtails fundamental rights or has the effect of nullifying a judicial decision, it does not necessarily violate basic structure unless the identity of the Constitution is subverted.

Indeed, the equality code comprising equality before the law (Article 14) and non-discrimination (Articles 15(1) and 16(1)) is treated as part of the basic structure. But at the same time, the court has accepted that equality enshrined under the Constitution is not merely formal but substantive. The court in Indra Sawhney and in other similar cases tried to strike a balance between non-discrimination and affirmative action by laying down certain limitations. But the court also maintains that these limitations are not constitutional principles but judicial constructs which become part of the Constitution. They have never been treated by the court as the maximum limit to which the government may go to bring about substantive equality. Therefore, an amendment that seeks to nullify these limitations for achieving substantive equality has been previously upheld by the court.

For example, Indra Sawhney limited the scope of reservation only to initial appointments and not in promotions. To bypass that, the 77th constitutional amendment was brought that allowed reservation in promotion. Later, by the 81st amendment, it was made possible to carry forward the unfilled vacancies in reserved category of one year to the subsequent year even if the number of reserved seats in that year exceeded 50 per cent of the total vacancies. These amendments, as well as other ones, have been upheld in M Nagaraj vs. Union of India. The Apex Court said that since equality under the Constitution is substantive and not formal, an amendment meant to achieve substantive equality does not violate the equality code and hence, doesn't change the identity of the Constitution, even if it has the effect of nullifying a court decision. Following the same principles, it is unlikely that reservation for EWS, whose objective is to secure economic justice to the weaker sections among the unreserved categories, will be viewed by the court as violative of the equality code or basic structure, even if it exceeds the 50 per cent cap.

Does economic criterion as the sole basis of reservation changes the identity of the Constitution? No. The Constitution during Indra Sawhney didn't have a provision regarding reservation based on economic conditions. Hence the court restricted the scope of reservations only to caste-based reservations and not otherwise. Now the Constitution has been amended and such amendment does not change the identity of the Constitution. Both the preamble and the directive principles seek to achieve social, political and economic justice. Article 46 puts the responsibility on the state to promote educational and economic interests of "the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes". The phrase "weaker sections" does not restrict the state's responsibility only to backward castes. The Supreme Court has itself excluded the creamy layer among the backward classes from enjoying reservation, making reservation available only for the economically weak within those categories. There is no reason why such a category may not be carved out of the general categories to provide special protection to the EWS.

(The views expressed are strictly personal)

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