Omission to exiting Clause (6) of Article 16
"Article 16(6)- Nothing in this Article shall prevent the state from making any provision for the reservation of appointments or posts in favor of any economically weaker sections of citizen other than the classes mentioned in clause (4), in addition to the existing reservation and subjected to a maximum of ten percent, Of posts in each category."
The aforementioned clause has been inserted by the 103rd Constitutional Amendment Act, 2019 by Parliament of India. This provision violates the right to equality envisaged under Article 14 of the Constitution which in turn violates the basic structure of the constitution. The newly inserted provision should thus, be subjected to judicial review and struck down on the grounds which are as follows.
Justification for an amendment to omit or repeal clause (6) from
Article 16
Firstly, the 10% reservation is arbitrary when calculated on an economic basis only. In the landmark judgment of Indra Sawhney & Others v. Union Of India[1], the 9 judges Constitutional bench of the Supreme Court disregarded economic backwardness as one of the sole criterions to provide reservation. The Hon'ble Supreme Court had held that reservation of seats or posts without any historical discrimination finds no justification in the Constitution. There is no other factor or basis mentioned in clause (6) other than an economic basis which renders this clause invalid.
Secondly, it exceeded the limitation cap of 50% reservation for the backward classes, which is already provided to them under Article 16(4), to 60%. This 50% cap limit is decided in the Judgment of Indra Sawhney & Others v. Union of India case. In cause (6), it is clearly mentioned the phrase “in addition to the existing reservation and subjected to a maximum of ten percent” which proves it exceed the limit cap of 50% that is fixed in Indra Sawhney case. so, this amendment is contrary to the judgment or basic feature of the constitution.
Thirdly, a pre-requisite of just the annual "family income" being below Rs. 8 lakh per year is not proper to provide a 10% reservation because 90% of the population falls within the ambit of Rs. 8 lakh year. Other prerequisites should have been enlisted or provided by the lawmakers as lack of proper pre-requisites leads to the fact that 90% of the population comes under this pre-requisite.
Fourthly, on one side, the government makes a provision to give 10% reservation to those economic weaker sections that fall under the pre-requisite of Rs. 8 lakh per year but on another side, the government takes a tax from the people having income under 8 lakh per year. So, on that basis, this is beyond the logic that actually government wants. On one side, State wants to uplift the economic weaker section by making reservation provision and on the other side, State is discriminating with them by imposing tax. The government said economic weaker sections are those whose income falls under the prerequisite of 8 lakh per year. So, my question is here that how will EWS, less than 8 lakh per year, pay the tax because, in present, these EWS people are at that position where reservation provision be made for them by the government to uplift their condition in a society.
Fifthly, there is no clarification between Below Poverty Line (BPL) and the economically weaker section people who come under 8 lakh prerequisites; in the matter relating to who will eligible firstly in a job. This distinction is very necessary because people below poverty line do not get much resources in education than the people that come above the poverty line and below Rs. 8 lakh.
Sixthly, this amendment violates Article 14 which is right to equality. Firstly, by excluding the socially and educationally backward class including scheduled caste, scheduled tribe and OBC’s out of 10% reservation for the economically weaker section which is clearly used in clause (6) as “other than the classes mentioned in clause (4)”. Secondly, by discriminating on the basis of collecting tax from those people of EWS whose income between 5 to 8 lakh. According to the 2019 budget, Individual taxpayers with annual income up to 5 lakh rupees to get a full tax rebate. This is a clear violation of the right to equality under Article 14.
Seventhly, The 10% reservation for economically weaker section has no reference to caste and hence may not meet the test of Article 46.
So, on the basis of the above argument, this 103rd amendment should be declared void and repealed from the constitution. This 10% reservation infringes Article 14 i.e. right to equality which constitutes the basic feature of the constitution, in the form of excluding socially and educationally backward class including scheduled caste, scheduled tribe and OBC’s out of 10% reservation for economically weaker section. Supreme Court has reiterated in several cases that reservation cannot be made only on an economic basis and factors like social and educational backwardness are also important for reservation. If the government, in reality, wants to give a benefit to the economically weaker section then the government should create jobs to uplift the society and weaker section of the unreserved category instead of making a reservation for EWS. Unemployment is the main problem which is accountable for economic weaker section. The economically weaker section cannot be uplifted only by way giving reservation in jobs and appointments, if there were no more jobs then there is no use of reservation. This amendment will be proved good and effective for EWS people when some changes will be done by parliament likely in the sense of giving reservation to those people who are coming below poverty line because of that actual economically weaker section that comes under the below poverty line can get actual benefit of that 10% reservation and; to include socially and educationally backward class including scheduled caste, scheduled tribe and OBC’s to 10% reservation for economically weaker section for unreserved category by which this 10% reservation will be eligible to pass the constitutional test of Article 46. If the above-mentioned changes are not taken to the 103rd Constitutional Amendment Act, 2019 before the 2019 Lok Sabha election. Then, this is cynical vote-bank politics, especially on the eve of an election. This amendment should be repealed or deleted by Parliament. This amendment is done only with the intention to make fun of reservations by amendments to do politics.
[1] AIR 1993 SC 477
Thoughts of,
Akshay Sarjan,
3rd Year, B.A.LL.B.,
National Law Institute University, Bhopal.
(Image used for representational purpose only. Image Credits: https://www.newslaundry.com/2019/01/08/reservation-debate-general-caste)
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