103rd AMENDMENT TO THE CONSTITUTION

In order to ensure equal opportunity for every caste group, the reservation system was included in the Constitution.

Article 15 and 16 of the Constitution of India make provisions for the prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth and tends to bring equal opportunities in a matter of public employment. The special provisions have been made for the Scheduled Castes and Scheduled Tribes in the form of getting education and employment to bridge the gap between having and have nots.

The Constitution (One Hundred and Third Amendment) Act, 2019, provides for the "economically weaker section" of the society which is in consonance with Directive Principle of State Policy mentioned under Article 46 of the Constitution. Clause 6 has been added in Article 15, which says that neither freedom to practice any profession or to carry on any occupation, trade or business nor Article 29, will be considered as a restriction for the government to make special provisions for the economically weaker section of the society. Further, there has been an addition to Article 16, which gives power to the government to make special provisions in the appointment or posts in favour of economically weaker section of the citizens, which is subject to maximum 10% of the posts in each category. The main points of the amendment can be summarised as follows:

• The amendment applies to the general category and not to the groups which have already got reservation under the provisions of Article 15 and 16 like Scheduled Castes, Scheduled Tribes, Other Backward classes.
• This amendment has introduced reservations for EWS of the society, belonging to the general category for admission to educational institutions, including private educational institutions, whether aided or unaided by the State but excluding the minority educational institutions.
• The maximum reservation can be 10% of the seats in each category.
• Section 19(1)(g) and protection of interest of minorities are not a bar against making provisions in accordance with this amendment.

The individuals included in the term "economically weaker sections" are to be decided considering the family income and other indicators of economic disadvantage.

Under the Act, individuals with families having a gross annual income of up to Rs 8 lakhs, from all sources, can avail the quota. Families who own over five acres of agricultural land, over 1,000 square feet house, over a 100-yard plot in the notified municipal area, or over a 200-yard plot in the non-notified municipal area cannot avail the reservation.[1]

This amendment was challenged by many in the country, and a writ petition has been filed by Youth for Equality on the ground that it violates the basic structure principle and rule of 50% quota limit. The rule that reservation should not exceed the limit of 50% first arose in M.R. Balaji v. State of Mysore[2]. One of the significant cases to understand the concept of reservation is Indra Sawhney's case[3] which is popularly known as Mondal Commission Case.

It was reiterated that the reservation contemplated in Clause (4) of Article 16 should not exceed 50%. However, in an extraordinary situation, this percentage may be exceeded. But, every excess over 50% will have to be justified on valid grounds. Reserved category candidates getting selected in open competition on the basis of their merit, should not be counted against the quota reserved for them.[4]

[Authors Profile: Ritika Sharma, is pursuing B.com LLB from UILS, Panjab University, Chandigarh.]

[1] Express Web Desk, Should 10% quota matter to be referred to Constitution Bench? S.C. to decide on March 28, THE INDIAN EXPRESS( Mar. 11, 2019, 12.51 PM), https://indianexpress.com/article/india/supreme-court-10-per-cent-ews-general-quota-petition-hearing-constitution-bench-march-28-5620172/

[2] AIR 1963 SC 649

[3] AIR 1993 SC 477

[4] NARENDRA KUMAR, CONSTITUTIONAL LAW OF INDIA 194-195( 7th ed. 2008)