Prime Minister Narendra Modi along with BJP National President Amit Shah and Finance Minister Arun Jaitley on the second day of BJP National Executive Meet, at Ramlila Maidan, on January 12, 2019 in New Delhi (Raj K Raj/Hindustan Times via Getty Images)
Snapshot
  • Even if the reservation for general category is put to a ‘basic structure’ test, the NDA government has nothing to worry.

With the passage of Historic 124th Constitution Amendment Bill from both the houses of the Parliament the debate will now shift to whether this decision would be able to pass judicial scrutiny in the Supreme Court.

This piece would categorically explain how this amendment of the Constitution is in consonance with the existing legal framework. This amendment not only helps realize the dream of strengthening the hands of poor in the country but importantly looks at those who were kept outside the umbrella of affirmative action by the state just because they were born in General or forward castes.

Whether the Constitution envisages and mandates uplifting of the economically weaker sections of the society

Granville Austin in his book Indian Constitution- A Cornerstone of Nation illustrates three strands of the seamless web of Indian Constitution. These three objectives of our Constitution include national unity and integrity, democracy and social revolution. The nature of revolution in the society, as envisaged by Constitution framers, was to be socio-economic and was to be pursued by Constitutional means with a democratic spirit.

The two very apparent consequences that appeared to pave the way for this eventual silent socio-economic revolution, in the very early years of enactment of Constitution, were the zamindari abolition laws with land ceiling acts and the scheme of reservations in matters of public employment. Various land ceilings and redistribution programmes of the government, (which even compelled the legislature to devise the 9th Schedule somewhat compromising with the mandated scheme of judicial review) were to ensure the emancipation of the economically weaker sections of the society.

It is pertinent to mention that the Objective Resolutions presented by Jawaharlal Nehru in the Constituent Assembly which later on went to become the Preamble of the Constitution talk about equality of opportunity and economic justice. The directives given to States in Part IV of the Constitution, urge to minimise the inequalities in income, thereby, promoting welfare and securing a just social order.

Article 46 states it even more specifically that, “The State shall promote with special care the educational and economic interests of the weaker sections…….” Those who are arguing that reservation is not a poverty alleviation programme must understand that if it is not so, then it certainly should be one, as per the mandate of the Constitution.

And that is what the government seems to be doing with this amendment.

Whether economic backwardness can become a criteria to give reservations

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First of all, it is important to note that reservations in India are of three types.

The first is given to members of SC/ST classes in reservation of Parliamentary and Assembly seats.

The second is given in admission to educational institutions.

The third is given in the matters of public employment i.e., reserving appointments and posts in favour of SC/ST and OBCs.

Article 15 of the Constitution deals with reservation of seats in admission to educational institutions. It is pertinent to mention that the original Constitution never envisaged for any such provision in the three clauses of Article 15 and envisaged absolute non-discrimination on the basis of religion, race, caste etc.

It was only after the decision of the Constitution bench of the Supreme Court in the ‘’State of Madras Vs. Champakam Dorairajan AIR 1951 SC 226’, that the textual basis for reservation was created in the Constitution by inserting Article 15 (4) vide the First Amendment.

So, if it is argued that the original constitution did not have the necessary provisions for reservations based on economic backwardness, then it can also be argued that it also never had provisions for social and educational backwardness.

This raises the question that if Article 15(4) can exist then why can't the proposed Art 15 (6) and Art 16 (6) according to the 124th Amendment, also exist? Essentially, it is just adding another criteria i.e., economic backwardness, as social and educational backwardness were added earlier.

Article 16 of the Constitution is the other provision from where the reservation in public employment emanates. Even this most substantive provision from which the entire scheme of reservations emanated, states in clause (4) that “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”.

The exact term that the Article uses is “backward class” and “caste”. Even the Supreme Court in early Constitution bench decisions of ‘State of Madras Vs. Champakam Dorairajan, AIR 1951 SC 226’ and ‘MR Balaji Vs State of Mysore, AIR 1963 SC 649’ completely rejected the idea of caste-based reservations.

In ‘R Chitralekha Vs. State of Mysore’, the Supreme Court upheld the economic basis of reservations adopted by erstwhile Mysore government. Moreover the court has time and again problematised the idea of caste being the sole basis of reservations.

It was only post the 1980s that the Court accepted the argument that caste is also a class within the meaning of this Article. Even then the original meaning of class being a purely economic criterion remains as a living interpretation to which provisions can be made in favour of such backward classes.

A 9-judge-bench of the Supreme Court in the Indira Sawhney case by dissent to the majority, held that economic consideration is relevant to ascertain backwardness.

Para 281….. But unfortunately the vast majority of our people are not blessed by affluence but afflicted by poverty. Poverty is a disgrace to any nation and the resultant backwardness is a shame. But the Constitution envisages reservation for those persons who are backward because of identified prior victimization and the consequential poverty. Poverty invariably results in social and educational backwardness…

Para 391. ……It is high time that we leave the dogmatic approach of making reservation in public services on the basis of caste as a symbol of social backwardness. We must adopt a practical measure to confining it only to low income groups of people having un-remunerative occupations whose talents and abilities are subdued under the weight of poverty. I, therefore, hold that a backward class for the purposes of Article 16(4) can be identified solely on the basis of economic criteria.

Further the Supreme Court in ‘Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1’ has observed that economic consideration is a better tool to ascertain social and educational backwardness with the help of statistical data.

Para 561. Income is a much better determinant of educational achievement than caste. The table below was derived from the Reproductive Child and Health Survey, 2002-2004 (6, 00,000 households surveyed).

Average years of schooling:

SC OBC Upper caste Hindu

Poorest rural quintile 1.6 1.7 2.2

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Richest rural quintile 5.1 5.5 6.1

For the upper caste, caste barely helps. These numbers indicate that it is one's income, not caste, that makes a real difference in determining how much schooling one completes. Therefore, if income be the bar to education, economic criteria should be the means by which we identify beneficiaries of special provisions under Article 15(5).”

Whether breaching the upper limit of 50 per cent as set up by Supreme Court would prove fatal for the Amendment

It is vehemently argued that ‘Indira Sawhney Vs. Union of India, (1992) Supp (3) SCC 217’ has set up a very rigid limit and the 50 per cent limit for reservation cannot be exceeded. It has now become imperative to excavate the truth from Indira Sawhney itself, paragraph 800 of the judgment per majority states,

Para 810. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far flung and remote areas the population inhabiting those areas might, on account of their being out of the mainstream of national life and in view of conditions peculiar to and characteristical to them, need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made out.

Para 812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature…

Caste alone is not a proof of backwardness

In the ‘Indira Sawhney’ case itself per majority, the Hon’ble Supreme Court has already held that there may be certain other parameters to ascertain backwardness upholding the decision rendered in Chitralekha case [AIR 1964 SC 1823].

Para 800… this court held that such an identification is permissible. We see no reason to differ with the said view inasmuch as this is but another method to find socially backward classes. Indeed, this test in the Indian context is broadly the same as the one adopted by the Mandal Commission. While answering Question 3(b), we said that identification of backward classes can be done with reference to castes along with other occupational groups, communities and classes. We did not say that that is the only permissible method. Indeed, there may be some groups or classes in whose case caste may not be relevant to all. For example, agricultural labourers, rickshaw-pullers/drivers, street-hawkers etc. may well qualify for being designated as Backward Classes.

The Supreme Court earlier in the ‘K.C. Vasanth Kumar v. State of Karnataka, 1985 Supp SCC 714’ has already held on the same lines that

Para 26. Therefore, a time has come to review the criterion for identifying socially and educationally backward classes ignoring the caste label. The only criterion which can be realistically devised is the one of economic backwardness. To this may be added some relevant criteria such as the secular character of the group, its opportunity for earning livelihood etc. but by and large economic backwardness must be the loadstar. Why I say this?

Para 27. Chronic poverty is the bane of Indian Society. Market economy and money spinning culture has transformed the general behaviour of the society towards its members. Upper caste does not enjoy the status or respect, traditional, voluntary or forced any more even in rural areas what to speak of highly westernised urban society. The bank balance, the property holding and the money power determine the social status of the individual and guarantee the opportunities to rise to the top echelon. How the wealth is acquired has lost significance. Purity of means disappeared with Mahatma Gandhi and we have reached a stage where ends determine the means. This is the present disturbing situation whether one likes it or not. Rane Commission on the evidence before it and after applying the relevant tests and criteria observed as under

We have found on applying relevant tests and criteria and on the basis of the evidence on record, that there are certain castes/communities or classes of people which are backward, but, only lower income groups amongst them are socially and educationally backward. In order to ensure that, no ambiguity remains in regard to the above aspect, we may add that, the above observations hold good even in respect of those classes which are identified as socially and educationally backward without reference to any caste.” [Report of Rane Commission, Chapter XII, page 12.1]”

Further, in paragraph 30 the Court concluded by marking reservation to economically weaker sections as a way forward and even as a tool to strike at the root of problem causing cause of social and educational backwardness in society.

Para 30. Let me conclude. If economic criterion for compensatory discrimination or affirmative action is accepted, it would strike at the root cause of social and educational backwardness, and simultaneously take a vital step in the direction of destruction of caste structure which in turn would advance the secular character of the Nation. This approach seeks to translate into reality the twin constitutional goals: one, to strike at the perpetuation of the caste stratification of the Indian Society so as to arrest regressive movement and to take a firm step towards establishing a casteless society; and two, to progressively eliminate poverty by giving an opportunity to the disadvantaged sections of the society to raise their position and be part of the mainstream of life which means eradication of poverty.

The government is ready to justify itself by highlighting the injustice to a very large section of unreserved poor which required a much needed measure. Secondly, the government has come up with an amendment in the Constitution. If at all it is to be challenged, it must be challenged against the basic structure and it is difficult to find out any such basic feature that seems violated by such an amendment.

Whether this attempt to grant reservations would meet the same result as the previous ones

It has been argued that this amendment would end up having the same result as the attempts by Karpoori Thakur, Narasimha Rao and several state governments.

The difference is that his time, a well thought out strategy has been executed by amending the Constitution itself, thereby creating a clear textual basis to ensure reservations for the economically backward sections of the society.

Clearly, the roadmap ahead is through transformative constitutionalism i.e., a commitment to substantive equality and improving the socio-economic conditions of the marginalised, which will, in essence, realise the dreams of the creators of our constitution.

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