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The Constitutional 103rd Amendment added Article 15(6) and 16(6) to the Constitution. The said amendment allowed reservation to economically weaker section in India. Reservations for admissions in educational institutions and employment has been a matter of challenge in various litigations in supreme as well as high courts. Diverse opinions have expressed in regard to the need for a reservation.
Reservation is one of the many tools that are used to preserve and promote the essence of equality, so that disadvantaged groups can be brought to the forefront of civil life. It is also the duty of the State to promote positive measures to remove barriers of inequality and enable diverse communities to enjoy the freedoms and share the benefits guaranteed by the Constitution.
- 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.
- Equality of opportunity in matters of public employment.
(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.
History of Reservation in Education And Employment in India
Article 14, 15, 16 together form part of the same constitutional code of guarantee of equality and supplement each other. Article 15 is an instance and particular application of the right of equality which is generally stated in Article 14.
While Article 14 is available to all persons, Article 15 is available to citizens only. It was held in that case that while Article 14 guarantees the general right of equality, Article 15 and 16 are instances of the same right in favour of citizens in special circumstances.
Article 15 is more in general in terms than Article 16, the latter being confined to employment or appointment to any office under the State. It is also worthy to note that Article 15 does not mention of descent as one of the prohibited grounds of discrimination, whereas Article 16 does.
In State of Madras v. Champakam Dorairajan, Dorairajan was a Brahmin girl from the Madras state. In 1951, she could not get admission in a medical college even though she had scored sufficient marks, due to a communal Government Order issued by the Madras government. Government Order states that seats should be filled in by the selection committee strictly on the following basis caste, religion and race.
The GO did not mention backwardness in anyway. So it can be safely assumed that most of the seats were filled based on a caste basis. So the girl (Champakam) moved to the Supreme Court and claimed she had been discriminated only based on her birth (caste), the court agreed and struck down the entire GO. The Supreme Court struck down the order stating that the law is void because it classified the students on the basis of caste.
Major agitations broke out in Tamil Nadu, leading to political and social upheaval. India had just been formed, the Lok Sabha had not even met, and the government was forced to amend the constitution for the first time, due to the quota situation in the Madras state. The amendment added a “clause 4 to Section 15″(Constitutional 1st Amendment).
In Balaji v. State of Mysore it was held that ‘caste of a person cannot be the sole criteria for ascertaining whether a particular caste is backward or not. To determine the backwardness one should consider, such as poverty, occupation, and place of habitation may all be relevant factors to be taken into consideration.
The court further held that it does not mean that if once a caste is considered to be backward it will continue to be backward for all other times. The government should review the test and if a class reaches the state of progress where reservation is not necessary it should delete that class from the list of backward classes.’
Constitutional Validity of Constitutional (One Hundred And Three Amendment) Act 2019
Article 16(4) and Article 15(4) permits reservations in favour of any “backward classes of citizens”. Backward classes having been classified by the constitution itself as a class deserving special treatment, and the constitution having itself specified the nature of the special treatment, it should be presumed that no further classification or special treatment is permissible in their favour apart from or outside of Art 16(4) and Article 15(4).
In K.C. Vasanth Kumar v. State of Karnataka, the Supreme Court had an occasion to consider the question of characterising backward classes.
According to CHANRACHUD, C.J., two tests should be conjunctively applied for identifying backward classes: one, they should be comparable to the STs and SCs in the of their backwardness; and, two, they should satisfy the means test, that is to say, the test of economic backwards, laid down by the state government in the context of the prevailing economic condition.
The reservation of 10% of the posts in favour of the ‘other economically backward sections of the population who are not covered by any of the existing schemes of the reservations made by the office memorandum dated 25-9-1991 is permissible under Art. 16 and Article 15. The impugned Memorandum does not say whether this classification is made under clause (4) or clause (1) of 16. Evidently, this classification among a category is outside the purview of clause (4) of Art 16.
The expression weaker section in Art. 46 is wider than ‘backward classes’. The backward class of citizens in Art. 16(4) and Article 15(4) does not comprise all the weaker sections of the people but only those which are socially and educationally backwards, and therefore, economically backward, and which is not adequately represented in the services.
Further, the expression ‘weaker sections of people’ does not necessarily refer to a group or a class but even individuals, and their weakness may be on account of factors other than even individuals, and their weakness may be on account of factors other than social and educational backwardness, e.g., poverty or social handicaps, flood, famine, riot, war, and the like.
The expression “weaker section” can also take within its compass, individuals who constitute weaker sections or weaker parts of society.
On a fuller consideration of the matter, we are of the opinion that clause (4) of Article 15 and 16 is not, and cannot be held to be, exhaustive of the concept of reservation; it is exhaustive of reservations in favour of backward classes alone.
Merely because, one form of classification is stated as a specific clause, it does not follow that the very concept and power of classification implicit in clause (1) of Article 16 and 15 is exhausted thereby.
In such cases, the State has to satisfy, if called upon, that making of that provision was necessary (in public interest) to redress a specific situation. The very presence of clause (4) should act as a (sic) done upon the propensity to create further classes deserving special treatment.
In the Indra Sawhney case, the Supreme Court had categorically mentioned that 50 per cent criteria applies only to that class-based reservation envisaged in Article 16(4) of the Constitution. Therefore the 10% reservation for the economically weaker section is not under the purview of 50% ceiling mentioned in the above case.
Economic criterion being a basis for reservations
Economic criteria cannot be the sole basis for reservation as it was in Indra Sawhney v. Union of India and Balaji v. State of Mysore. A backward class cannot be determined only and exclusively with reference to economic criterion. It can be a consideration or basis along with and in addition to social backwardness, but it can never be the sole criterion.
But, various provisions of the Constitution like Articles 15, 29, 46 and 341 recognize the factual existence of backward classes in our country and make a sincere attempt to promote the welfare of the weaker sections. This Act is a sincere attempt in this direction to mitigate the hardships of the people who are left behind because of their economic conditions.
One of the several contentions raised against the Act was that it formed reservation on the basis of economic criteria. But if we look into the Constitutional Assembly Debates relating to the first Amendment Act, 1951, pertaining to the addition of Article 15(4) it is evident that the description of backwardness in clause 4 of Article 15 was considered to be similar to that of clause (1) of Article 340.
This was the reason, the word “economically” did not find a place in clause (4) of Article 15 though many members pointed out that in the identification of socially and educationally backward classes, economic backwardness could not be ignored.
“Mere poverty cannot be the test of backwardness because in this country except for a small percentage of the population, the people are generally poor – some being poorer, others less poor. . . In identifying backward classes, one has to guard oneself against including therein sections which are socially and educationally advanced because the whole object of reservation would otherwise be frustrated.
The quota aims to cover nearly 190 million people from the unreserved category. The Act will provide benefits to the unreserved poor class people who are unable to afford their education expenses and are unemployed.
The ratio behind caste-based reservation is a long history of untouchability and that criteria should not be changed, it should remain caste-based to minimise the social inequality but at the same time, it is a good move by Government to provide reservation to economically unreserved class to minimise the economic inequality. It is in consonance with the Preamble of the Indian Constitution which provides social and economic justice elongated in the fundamental rights and directive principles.
Further, if seen closely it is just the implementation of the idea of the Constitution-makers who felt that the remedy to backwardness was an economic basis but to make the reservation a cumulative thing added the word socially. As “socially” is a much wider word including many things and certainly including economically.
Here to conclude that the Constitutional 103rd Amendment Act 2019 is not unconstitutional as it does not violate the basic structure of the constitution. In the Indra Sawhney v. Union of India the 50% ceiling limit imposed by the Supreme Court is restricted to backward classes mentioned in Article 15(4) and 16(4). But holding that economic criterion as the sole basis for reservation is not unconstitutional.
 State of Madras v. Champakam, 1951 SCR 525.
 AIR 1951 SC 226.
 AIR 1963 SC 649
 AIR 2000 SC 450 : (1999) 8 SCC 176
 Jitendra Kumar Singh v. State of U.P, AIR 2010 SC 1851: (2010) 3 SCC 119.
Indra Sawhney v. Union of India, AIR 1993 SC 447.
 Indra Sawhney v. Union of India, AIR 1993 SC 447.
 AIR 1993 SC 447.
 1st Backward Classes Commission Report, Second Part (1955).
 M.P. Jain, Indian Constitutional Law, LexisNexis, 12 (7th Edn., 2016)
 Parliamentary Debates, Vol. XII-13(Part II) at 9830.