Introduction

• The 103rd Constitutional Amendment Act, 2019 introduced reservations for economically weaker sections of society.
• The term “economically weaker sections of citizens” was introduced in the Constitution of India, 1950 (COI) by this Act.

Legislative History of the Amendment

• The Constitution (One Hundred and Twenty Fourth Amendment) Bill, 2019 was introduced in the Lok Sabha by the Minister of Social Justice and Empowerment, Mr. Thaawar Chand Gehlot.
• The bill was passed in Lok Sabha by 323 members voting in the favor.
• Subsequently it was passed by the Rajya Sabha with 165 members voting in the favor.
• The Constitution (One Hundred and Third Amendment) Act, 2019 received Presidential assent on 12th January 2019 and came into effect on 14th January 2019.

Amendments Introduced by the 103rd Constitutional Amendment Act

• Following Articles have been introduced by way of 103rd Constitutional Amendment Act:
  • Article 15 (6) was added which provided that nothing in this article or Article 19(1)(g) or Article 29(2) shall prevent the State from making
    • Any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
    • 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.
      • Explanation. —For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.’.
  • Article 16 (6) was added which provided that 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

Who Can Avail the Benefit of Economically Weaker Sections?

• Persons with an annual gross household income upto Rs. 8 Lakh.
• The following cannot avail the benefit of reservation:
  • Families owning over 5 acres of agricultural land.
  • A house over 1000 square feet.
  • A plot of over 100 yards in a notified municipal area.
  • Over 200 yards plot in a non-notified municipal area.
• Communities that already have reservations such as SCs, STs are also excluded.

Constitutionality of 103rd Constitutional Amendment Act, 2019

• In the case of Janhit Abhiyan v. Union of India (2022), a five judge bench comprising of Chief Justice Uday Umesh Lalit, Justice Dinesh Maheshwari, Justice S. Ravindra Bhat, Justice Bela M. Trivedi, Justice J.B. Pardiwala upheld the constitutional validity of this amendment.
• The reservation was upheld by a 3:2 majority.
• While Justice Dinesh Maheshwari, Justice Bela Trivedi and Justice JB Pardiwala upheld 103rd Amendment. Justice Ravindra Bhat wrote the minority opinion and Chief Justice Uday Umesh Lalit concurred with the minority view.
• The three main issues for consideration here were:
  • Whether the amendment violated the basic structure of the Constitution?
  • Whether amendment is violative of basic structure for excluding poor among the SC/ST/OBC categories from EWS Quota?
  • Whether it is violative of basic structure for breaching the 50% ceiling limit?
• The Court observed that there cannot be any cut and dried formula or theorem which could supply answer to the question if the amendment violates the baisc structure. The Court observed that the word ‘economic’ has been used 30 times in the Constitution.
• Thus, in all references to real and substantive equality the concept of economic justice has acquired equal focus.
• The Court held that the provisions contained in Articles 15 and 16 of the Constitution of India, providing for reservation by way of affirmative action, being of exception to the general rule of equality, cannot be treated as a basic feature.
• With respect to the second issue the Court held that certain classes are already provided with the benefit of reservation. The Parliament in it’s wisdom did not extend yet another benefit to the class that was already enjoying the benefit of reservation.
• The Court held that the SC/ST/OBC for whom special provisions are made under Articles 15(4), 15(5) and 16(4) form a separate category as distinguished from the general or unreserved category. They cannot be treated at par with the citizens belonging to the general and unreserved category.
• It was further held by the Court that reservation of EWS upto 10% in addition to existing reservation does not result in damage of basic structure of the Constitution. The ceiling of 50% is not inflexible and in any case applies only to reservations envisaged by Article 15(4), 15(5) and 16(4).

Review Petition Against the Judgment

• A review petition was filed in the Supreme Court in Society for the Rights of Backward Communities v. Janhit Abhiyan and Ors. (2023).
• The Supreme Court dismissed the review petition.
• The review petition was dismissed on the ground that there was no error apparent on the face of the record and hence no case for review is made out under Order XLVII Rule 1 of Supreme Court Rules, 2013.

Conclusion

• When the Constitution came into force economic criteria was never the sole basis for providing reservations. However, the 103rd Amendment Act introduced this criteria for providing reservations. It has also been upheld by the Court. Thus, the amendment is in the spirit of the Constitution and does not violate the basic structure of the Constitution.