What is the Challenge to Constitution (103rd Amendment) Act, 2019?

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The Supreme Court referred to a five Judge Bench, which was a challenge against the Constitution (103rd Amendment) Act, 2019. The amendment provides a 10% reservation for people belonging to economically disadvantaged sections of the society. 

Constitution (103rd Amendment) Act, 2019

The Lok Sabha passed the Constitution (103rd Amendment) Act on January 8, 2019, which made amendments to Article 15 and 16 of the Indian Constitution. Article 15 prohibits discrimination based on religion, race, caste, sex, or place of birth and this amendment adds a new provision, namely Sub-section 6. The provision states:

“(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. “

Article 16 provides for ‘Equality of Opportunity in Matters of Public Employment.’ The Act sought to add sub-section 6 to the Article. The provisions under sub-section 6 state:

“(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.”

Petition Filed in the Supreme Court

A batch of petitions has been filed against the Amendment Act before the Supreme Court. The petition was filed by the NGOs Janhit Abhiyan which opposed the amendment, stating that the economic status cannot be the sole basis. This amendment was challenged by the petitioners on technicalities, and it was stated that the decision violated the basic structure of the Constitution. It is also claimed to be breaching the 50 per cent limit for reservation as maintained in the Indira Sawhney case.

A bench consisting of the CJI SA Bobde, as well as Justices Reddy and Gavai, looked into the petitions and the bench passed a reference order. A five-judge bench was referred to the petitions, to adjudicate upon the matter and the bench stated that since the Court agreed with the petition for having a ‘question of law’, the matter will be settled by a five-judge bench. The order also stated that the petition is to be heard under Article 145 (3) of the Constitution as well as Order XXXVIII of the Supreme Court Rules, 2013. 

The order was passed, keeping in mind the technicalities challenged. The Court is in agreement with the contention that the amendment violates the limitations set up in the Indira Sawhney case. The Court has also accepted the request to forward all similar petitions filed in various High Courts. 

Constitution of India 

The order of the Supreme Court stated that the Bench must adjudicate upon the claims of the Petitioner under Article 145(3) of the Indian Constitution. Article 145 deals with the rules to be followed by the Court and sub-section (3) of the Article deals with the appointment of judges for adjudication. 

The provision states that for adjudication of a question of law regarding the Constitution, there must be a minimum of five judges. 

Supreme Court Rules, 2013

The Court makes reference to Order XXXVIII of the Supreme Court Rules, 2013 which deals with the Application for Enforcement of Fundamental Rights under Article 32. Section (1) of the Order states that in the case of petitions under Article 32, it shall be in writing. Additionally, there must not be less than five judges to adjudicate upon such matter. The condition to be fulfilled is the existence of a ‘substantial question of law’ requiring the interpretation of the Constitution.

Reservations in India

The system of reservation was introduced in the year 1882 by William Hunter and Jyotirao Phule when they originated the caste-based reservation system; however, the true reservations system which is followed today was introduced in 1933. In 1933, the British Prime Minister Ramsay presented the ‘Communal Award’ which made separate electorates for Muslims, Sikhs, Indian Christians, Anglo Indians, Europeans, and Dalits. 

After India gained Independence, reservations were provided only for Scheduled Castes and Tribes. Other Backwards Classes (OBCs) were provided reservations from the year 1991 by the Mandal Commission. The Commission was to determine who all falls under the ambit of ‘socially and economically backwards’. 11 indicators were developed for the determination, and  27% of reservations were made for OBCs for Government Jobs. 

In the year 1990, a writ petition was filed by the Bar Association in the Supreme Court against a Notification. It announced a 27% reservation for Government jobs which later came to be known popularly as the Indira Sawhney case. A nine Judge Bench adjudicated upon the matter, and it held that ‘Backward Classes’ under Article 16(4) are to be identified on the basis of caste and not only on an economic basis. Additionally, it was held that the reservation for backward classes shall not exceed 50%.

Today, reservations in India are granted on the basis of the judgments and commission reports mentioned above. 

Conclusion

The question of Reservations in India has always been a sensitive matter. The Government is dutybound to ensure reservations are granted in a fair and just manner and not in an arbitrary way. The recent challenge to the 103rd Amendment Act, 2019 once again sheds light on the fragility of the matter. The Government has claimed that the amendment has been intended to ensure ‘social equality’. The decision of the Bench is capable of restructuring the system of Reservations in the Country and hence will be followed closely.


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