Supreme Court: On the Validity of 103rd Constitutional Amendment Act

Context

Recently a five-judge Bench of the Supreme Court, by a majority of 3:2, has upheld the validity of the 103rd Constitution Amendment.

Probable Question

Whether the Supreme Court Judgement on the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the state to make special provisions. Comment

About the Law on EWS Reservation

• In 2019, the 103rd Constitutional Amendment inserted Articles 15(6) and 16(6) in the Constitution to provide a 10% reservation to the Economically Weaker Section (EWS) to the General category.
• Benefit of the Quota system: It provides quota in higher educational institutions and initial recruitment in government jobs. 
• Article 15: It prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. 
• Article 16: It guarantees equal opportunity in matters of public employment. 
• The additional clauses gave Parliament the power to make special laws for EWS as it does for SCs, STs, and OBCs.
• Objective: It empowers state governments to provide reservations on the basis of economic backwardness by certain predetermined criteria such as land size owned, annual income, etc.
• Sinho Commission:
  • It recommended the EWS reservation.
  • The commission was headed by Major General (retd) S R Sinho. 
  • It was constituted by the UPA government in March 2005.
  • It recommended that all below-poverty-line (BPL) families within the general category as notified from time to time, and also all families whose annual family income from all sources is below the taxable limit, should be identified as EBCs (economically backward classes).

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EWS Criteria

• The Department of Personnel and Training (DoPT) based on the 103rd Amendment notified the criteria for employment and admission.
• Those who were not covered under the scheme of reservation for SCs, STs, and OBCs, and whose family had a gross annual income below Rs 8 lakh, were to be identified as EWS. 
• The notification specified what constituted “income”, and excluded some persons from the EWS category if their families possessed certain specified assets.

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Basis of the EWS Quota is under-challenged

• End of Equality: The petitioner called the amendment “an attack on the constitutional vision of social justice” and “a fraud on the Constitution”, and it will end equality of opportunity. 
• Violation of “basic structure” of Constitution: It violates the basic structure of the Constitution and breaches the 50% ceiling for reservation fixed by the Supreme Court ruling in the Mandal Commission case.

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Arguments in Favor of the Act

• Basic structure of the Constitution: 
  • Reservation based only on economic criteria does not violate the basic structure of the Constitution. 
  • The exclusion of classes covered in Articles 15(4) and 16(4), that is OBCs and SC/STs in the 103rd amendment does not damage the basic structure.
• Not for certain sections: The reservation is based on economically weaker individuals. The new law of a 10% quota in government jobs and education for economically weaker sections is irrespective of religion and caste.
• Promotion of Economic Welfare: It enables the inclusion of those who are disadvantaged economically.

Conclusion

Although the 103rd amendment act has many advantages for economic welfare and growth reservation should not be an end, it should be a means and should not be allowed to become a vested interest.

News Source: The Indian Express

https://indianexpress.com/article/explained/explained-law/quotas-poor-forward-castes-supreme-court-rule-8254179/ 

https://indianexpress.com/article/explained/explained-law/ews-reservation-case-supreme-court-8253279/

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