Date: 27/09/2022

Relevance: GS-2: Indian Constitution- features, amendments, significant provisions and basic structure; issues relating to development and management of Social Sector/Services relating to Health, Education, and Human Resources.

Key Phrases: Economic and Social backwardness, Supreme Court of India, Economically Weaker Sections (EWS), 103rd Constitution (Amendment) Act, 2019, Right to Equality

Context:

• During the recent hearing on the constitutional validity of Economically Weaker Sections (EWS) reservation, Chief Justice of India observed that economic backwardness can be temporary unlike social and other forms of backwardness which go down centuries and generations.

Background:

• A quota for the economically backward had long been sought and finally the Union government implemented the 10 percent reservation for the Economically Weaker Sections (EWS) in 2019.
• The EWS reservation based on a predetermined income has been challenged in the Supreme Court.
  • It has to examine the constitutional validity of the reservation, provided through the 103rd constitutional amendment as well.

The social reality

• It is a fact that there are poor individuals even among the Socially Advanced Castes (SACs) i.e.not covered under the scheduled castes, tribes and backward classes.
• These poor Socially Advanced Castes (SACs) too need help to get into the mainstream.
• The issue is to identify the problems they face and to find solutions based on the acceptable provisions of the constitution.

The constitutional provisions.

• Principle of Equality under Article 15(1) which prohibits the State from discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
• Article 16(1) guarantees “equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”
  • It prohibits discrimination against any citizen on the same grounds as in mentioned in Article 15(1) specifically with respect to employment or appointment under the State.
• Article 15(4) empowers the State to “make any provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes”
• Article 16(4) provides “for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State”.

The idea behind the reservation for selected classes of citizens

• In the Mandal Case 1992, the Supreme Court observed that the founding fathers of the Constitution were aware of the “historic injustices and inequalities” prevalent over the centuries in Indian society.
  • These were not inequities against individuals but were deprivations imposed on certain social classes as a whole.
  • This inherent injustice against certain classes(the SCs, STs, SEdBCs) demanded special provisions to ensure that the principle of equality enshrined in Articles 14, 15(1) and 16(1) becomes effective.
• These deprived classes consist of many castes and the worst affected are the Scheduled Castes (SCs) which suffered humiliating prohibitions and injunctions due to the imposed “untouchability”.
  • They suffered massively due to this mechanism meant to deprive them of access to education and every opportunity for advancement and upward and outward mobility
• The others were the Scheduled Tribes (STs) who were pushed to remote areas and SEdBCs who were denied access to education and the opportunity to have a “look-in” into administration and governance of the State.

Socially Excluded and Deprived vs the Poor among the Socially Advanced Castes

• It is argued that the reservation was envisaged only for those belonging to these three social classes(SCs,STs, SEdBCs)
  • This was part of the national and Constitutional mission to eliminate the gross social inequalities created by the Indian caste system over the centuries and which still exist.
• The deprivations and backwardness of the poverty suffered by forward castes differ vis-a vis the other 3 classes.
  • Individuals of forward classes were not interdicted or prohibited or prevented in any manner from access to education and entering into services under the State.
• In the Mandal case Justice J. Reddy held that “backwardness of a class cannot be determined only and exclusively with reference to economic criterion, it could be a criterion but not the sole criterion.”
• Similarly Justice Sawant in the same case held that economic backwardness of the poor among higher castes is not on account of social backwardness and this poverty can be remedied by economic props alone which will put them on par status with others.

A quota for the economically poor of the Socially Advanced Castes is not a new idea

• The V P Singh government who brought reservation for SEdBCs was willing to bring a Constitutional amendment to enable provision of 5% or 10% reservation for the economically poor.
• Subsequently, the P V Narasimha Rao government made provision of 10% of the vacancies in civil posts and services under the Government of India for “other economically backward sections”.
  • However, this reservation was struck down by the Supreme Court in the historic Mandal judgment.
• Over the years certain state governments have brought reservation for the poor among the non-SC, non-ST, and non-SEdBC castes.
  • These provisions were struck down by the High Courts or the Supreme Court.

Possible effect of the 103rd Constitutional amendment

• Despite the introduction of reservation in 2019, doubts cast on whether the amendment will be constitutionally sustainable as litigations have been in place ever since the introduction.
• The issue of whether the proposed amendment is in keeping with or violative of the basic structure of the Constitution is there for the Court to see but prima facie it seems violative of basic structure because
  • The Constitution provides reservation only for any “backward class of citizens” under Article 16(4)
  • The Article also provides measures for SCs and STs and for the advancement of SEdBCs because of historical injustice to them but individuals of the SACs did not suffer from such deprivations.
• The grounds for this reservation do not come within the exceptional circumstances in which breach of the 50% limit can be permitted
• Other issues such as
  • Criteria for deciding the SAC poor.
  • SACs do not suffer from inadequacy of representation vis-a-vis other reserved classes, which is a ground to provide reservation.

Appropriate solutions to problems of poor SACs

• The only problem faced by young generations of Socially Advanced Castes who are genuinely poor is that they are not able to afford education to the fuller level for want of financial capacity.
• This problem needs to be resolved and can be resolved by having a comprehensive scheme of scholarships and educational loans.
  • It will ensure no child or youth of any caste drop out of education at any stage only on account of financial incapacity.
  • But it should not be at the cost of the SCs, STs and SEdBCs whose needs have till now not been fully provided for.

Conclusion

• There is a serious financial problem for many individuals of Socially Advanced Castes (SACs) which needs to be addressed through appropriate government interventions, schemes and conscious efforts.
• At the same time the SACs do not suffer any historical social deprivation thus providing reservation only on economic grounds is in the spirit of the constitution or not that call needs to come from the Judiciary and the Supreme Court at the earliest.

Source: Indian Express

Mains Question:

Q. The 103rd constitutional amendment act of 2019 violates the spirit of the constitution which mandates reservation for any “backward class of citizens” and not to “economically poor classes” under Article 16(4), give your arguments in favour of and against the statement; support them with suitable case laws and judgements. (250 words).