Hidayatullah National Law University

Uparwara Post, Abhanpur, Naya Raipur – 492002 (C.G.)

ECONOMIC RESERVATION IN INDIA: A Critical Analysis

(Project Report for Compensatory Discrimination)

Submitted to

Dr. Deepak Kumar Srivastava

Faculty Member (Constitutional Law)

Submitted by

Rahul Sawadia
Semester – VII, Section – A,
Roll No. 111
 ECONOMIC RESERVATION IN INDIA: A CRITICAL ANALYSIS

Declaration

I, Rahul Sawadia, hereby declare that the project work entitled “Economic Reservation in
India: A Critical Analysis” submitted to Hidayatullah National Law University, Raipur is a
record of original work done by me under the able guidance of Dr. Deepak Kumar Srivastava
(faculty member) of Hidayatullah National Law University, Raipur.

Rahul Sawadia

Roll No. - 111

th
Semester – 7

B.A.LLB. (Hons.)

Section – A

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Acknowledgements

I feel highly elated to work on the topic “Economic Reservation in India: A CRITICAL
ANALYSIS” because of its relevance in the understanding reservation jurisprudence and its
functioning.

I express my deepest regard and gratitude for our faculty of Compensatory Discrimination, Dr.
Deepak Kumar Srivastava for his consistent supervision, constant inspiration and invaluable
guidance, which have been of immense help in understanding and carrying out the importance of
the project report.

I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Thanking You.

Rahul Sawadia

th
Section – A (7 semester)

B.A. LL.B (Hons.)

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Contents

Declaration ii
Acknowledgement iii
Contents iv
Abstract v

1. Introduction……………………………………………………………......……………...... 1
1.1. Legislative history of The Act ………………………...........…………………………... 2
1.2. Need for Economic Reservation ………………………………………… …………….. 3
2. Salient features of the 103rd Constitutional Amendment …………………………….... 3
2.1. Economic Reservation in education ……………………………………………....…….. 3
2.2. Economic Reservation in Jobs ………………………….............................................…. 4
2.3. Economically weaker sections…………………………………………………….…….. 5
2.4. Implementation of the Act …………………………………………………………..….. 5
3. Drawbacks of the 103rd Constitutional Amendment …………………………………… 5
3.1. A Political Move………………………………………………………………………… 6
3.2. Another caste reservation ………………………………………………………….……..7
3.3.Secured vote bank ………………………………………………………….……………. 7
3.4.Detrimental to merit ………………………………………………………………...…… 7
3.5. Is the 103rd Amendment Unconstitutional ………………………………………….….. 8
3.5.1. The 50% Rule ………………………………………………………………….……….. 8
3.5.2. Individuals and Groups ………………………………………….……………….….. 10
3.5.3. Arbitrariness ………………………………………………………………….….……. 11
4. Conclusion…………………………………………………………………………………..10
5. Bibliography .……………………………………………………………………………… 11

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Abstract

Research objective
Set in the compensatory discrimination background, the broad objectives of the study is to
rd
understand the need for 103 Constitutional Amendment Act, 2019. This is sought to be
achieved by dealing with its legislative history, its features etc. Also, this research tries to study
the constitutionality of the same.

Research methodology & Source of data

This Project report is based on analytical Research Methodology. This study is absolutely based
on the secondary sources such as articles; books, journal articles, which have been primarily
helpful in giving this project a firm structure. Websites, documents and articles have also been
referred.

Hypothesis
The concept of economic reservation is successor of compensatory discrimination. The idea
about the topic is that, such reservation on economic grounds is not expressly provided in the
constitution. The author assumes that the concept of overreach is per se unconstitutional and it
hinders the concept of basic structure of the constitution.

Research questions
Set in the above perspective or background, the main questions which are tried to be answered
by the study are-

rd
1. What is the legislative history of 103 Constitutional Amendment Act?
2. What are the salient features of the said act?
3. What are the drawbacks of the said Act and is it per se unconstitutional?

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Chapterisation
The research has been organized into four chapters-

- The first chapter deals with the introduction of the topic i.e.,103rd Constitutional
Amendment Act and its legislative history.
- The second chapter deals with the salient features of the said Act;
- The third chapter deals with Drawbacks of the said Act and its Constitutionality;
- The fourth chapter deals with conclusion and suggestions.

Mode of citation
A uniform mode of citation i.e., 19th edition of Bluebook Citation, has been thoroughly used for
citing the sources of information used in this project.

Scope and limitation

The project report would try to understand the concept with limited perspective. This project
rd
research would cover the study of the concept of 103 Constitutional Amendment Act 2019 in
India only.

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1. Introduction

“Social justice is not possible if we exclude the economically backward sections of our society”.
1
- Meenakshi Lekhi
“10 per cent general category reservation is muddled thinking, may have serious political,
economic impact”.
- Amartya
2
Sen

The One Hundred and Third Amendment of the Constitution of India, officially
known as the Constitution (One Hundred and Third Amendment) Act, 2019,
introduces 10% reservation for economically weaker sections
of society for
admission to Central Government-run educational institutions and private educational
institutions (except for minority educational institutions), and for employment in Central
3
Government jobs. The Amendment does not make such reservations mandatory in State
Government-run educational institutions or State Government jobs. However, some states have
4
chosen to implement the 10% reservation for economically weaker sections.
A big 10 % of all government jobs and college seats will now have a reservation for people
outside high income brackets as President Ram Nath Kovind cleared 124th Constitutional
Amendment bill passed by parliament this week. Some call it a landmark achievement of Prime
Minister Narendra Modi, others call it a pre-election gimmick of the ruling party, which is trying
to do anything and everything that is possible to retain its power in the 2019 Loksabha Elections.
In this project report the author is not judging the motives behind the Amendments and would be
limiting our discussion to the legal points only i.e. highlights of the Amendment, Analysis of the
same and the constitutional validity of the Reservation Criterion.

1 Meenakshi Lekhi is a BJP member and a lawyer.

2 Amartya Kumar Sen is an Indian economist and philosopher, who has made contributions to welfare
economics, social choice theory, economic and social justice, economic theories of famines, and indices of the
measure of well-being of citizens of developing countries.
3 ET Explains, What is Constitution (One Hundred And Twenty-Fourth Amendment) Bill, 2019?, THE ECONOMIC
TIMES (Mar. 28, 2019, 6:30 PM) https://economictimes.indiatimes.com/news/et-explains/et-explains-what-is-
constitution-one-hundred-and-twenty-fourth-amendment-bill-2019/articleshow/67448343.cms
4 Times of India, After Gujarat, Telangana set to implement 10% quota for upper castes, THE TIMES OF
INDIA, (Mar. 27, 2019, 7:32 PM), https://timesofindia.indiatimes.com/city/hyderabad/after-gujarat-telangana-set-to-
implement-10-quota-for-upper-castes/articleshow/67534462.cms
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 ECONOMIC RESERVATION IN INDIA: A CRITICAL ANALYSIS

1.1. Legislative history of The Act

The bill of Constitution (One Hundred and Third Amendment) Act, 2019 was introduced in the
Lok Sabha on 8 January 2019 as the Constitution (One Hundred and Twenty-fourth Amendment)
Bill, 2019. It was introduced by Thawar Chand Gehlot, Minister of Social Justice and
5
Empowerment. The bill sought to amend Articles 15 and 16 of the constitution.

The bill was passed by the Lok Sabha on 9 January 2019, the last day of the House's winter
session. The bill received overwhelming support from the 326 members present with 323 votes
6
in favour and only 3 members voting against. Prime Minister Narendra Modi called the passage
7
of the bill a "landmark moment in our nation's history".

The Bill was tabled in the Rajya Sabha the following day. The House rejected 5 amendments
proposed by members of the Opposition. Dravida Munnetra Kazhagam MP Kanimozhi moved a
motion, supported by Left parties, to refer the Bill to a parliamentary select committee. The
motion was rejected receiving 18 votes in favour, 155 against, and one abstention. The Bill, as
8
passed by the Lok Sabha, was passed by the Rajya Sabha on 10 January 2019 with 165 votes in
9
favour and 7 against.

The Bill received assent from President Ram Nath Kovind on 12 January 2019. It was notified in
10
The Gazette of India on the same date. The 103rd Amendment came into effect on 14 January
11
2019.

5 The Constitution (One Hundred and Twenty Fourth Amendment) Bill, 2019, PRS LEGISLATIVE. (Mar. 29,
2019, 8:29 PM), https://www.prsindia.org/billtrack/constitution-one-hundred-and-twenty-fourth-amendment-bill-
2019
6 Varma, Gyan., Quota bill passed in Lok Sabha with near unanimous vote, LIVEMINT, (Mar. 27, 2019, 6:40
PM), https://www.livemint.com/Politics/f8v46qvKEfV9lKm4QUmfHI/Lok-Sabha-clears-quota-bill-with-nearfull-
majority.html
7 Livemint, Narendra Modi hails passage of quota bill in Lok Sabha, LIVEMINT. (Mar. 16, 2019, 5:39 PM),
https://www.livemint.com/Politics/9UgDb6mStPSyItaRQiko3K/Narendra-Modi-hails-passage-of-quota-bill-in-Lok-
Sabha.html
8 Money Control, Rajya Sabha approves 10% reservation for poor in general category, MONEYCONTROL,
(Mar. 27, 2019, 7:32 PM), https://www.moneycontrol.com/news/india/rajya-sabha-approves-10-reservation-for-
poor-in-general-category-3372501.html
9 News 18, Centre's 10% Quota For Economically Weak From General Category Passes Rajya Sabha Test,
NEWS18 (Mar. 26, 2019, 4:33 PM), https://www.news18.com/news/politics/centres-10-quota-for-poor-from-
economically-weak-general-category-passes-rajya-sabha-test-1997345.html
10 Press Information Bureau, President of India gives assent to The Constitution (One Hundred and Third
Amendment)
Act, 2019, PRESS INFORMATION BUREAU, (Mar. 25, 2019, 4:23 PM), http://pib.nic.in/newsite/PrintRelease.aspx?
relid=187454
11 Notification, The Gazette of India, (Mar. 24, 2019, 7:32 PM),
http://egazette.nic.in/WriteReadData/2019/195203.pdf.

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1.2. Need for Economic Reservation

As Meenakshi Lekhi says, “social justice is not possible if we exclude the economically
12
backward sections of our society.” The Preamble, which is the soul of the Constitution,
promises to all citizens social, economic and political justice. The economic status of citizens
constitutes one of the three tests of backwardness. Hence, the ends of social justice cannot be
truly met if we exclude the economically backward sections of society from availing the fruits of
development in an equal manner.

rd
2. Salient features of the 103 Constitutional Amendment
Currently, the quota can be availed by persons with an annual gross household income of up to
₹8 lakh (US$11,000). Families that own over 5 acres of agricultural land, a house over 1,000
square feet, a plot of over 100-yards in a notified municipal area or over a 200-yards plot in a
13
non-notified municipal area cannot avail the reservation.

2.1. Economic Reservation in education

Economic reservation in education is proposed to be provided by inserting clause (6) in Articles
15 of the Constitution.
The proposed Article 15(6) enables State to make special provisions for advancement of any
economically weaker section of citizens, including reservations in educational institutions. It states
that such reservation can be made in any educational institution, including private institutions,
whether aided or unaided, except minority educational institutions covered under Article 30(1).
It further states that the upper limit of reservation will be ten percent, which will be in addition to
the existing reservations. The amendment reads as-

In article 15 of the Constitution, after clause (5), the following clause shall be inserted,
namely:—

12 Meenakshi Lekhi, Is there a case for reservation for the forward classes?, THE HINDU, (Mar. 27, 2019, 7:32
PM), https://www.thehindu.com/opinion/op-ed/is-there-a-case-for-reservation-for-the-
forwardclasses/article26141628.ece
13 Indian Express, Should 10% quota matter be referred to Constitution Bench? SC to decide on March 28, THE
INDIAN EXPRESS, (Mar. 27, 2019, 7:32 PM), https://indianexpress.com/article/india/supreme-court-10-per-cent-ews-
general-quota-petition-hearing-constitution-bench-march-28-5620172/

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 ECONOMIC RESERVATION IN INDIA: A CRITICAL ANALYSIS

‘(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, w.hich 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
14
seats in each category.

2.2. Economic Reservation in Jobs

As regards job reservations, the proposed Article 16(6) enables State to make provision for
reservation in appointments, in addition to the existing reservations, subject to a maximum of ten
percent. At present, reservations account for a total of 49.5%, with 15%, 7.5% and 27% quotas
for Scheduled Castes, Scheduled Tribes and Other Backward Classes respectively. The
amendment reads as-

In article 16 of the Constitution, after clause (5), the following clause shall be inserted,
namely:—

"(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

14 Live Law, Breaking: Economic Quota Bill [103rd Constitution Amendment] Gets President's Assent,
LIVELAW, (Mar. 24, 2019, 3:26 PM), https://www.livelaw.in/top-stories/breaking-economic-quota-bill-103rd-
constitution-amendment-gets-presidents-assent-142064 https://www.livelaw.in/top-stories/breaking-economic-
quota-bill-103rd-constitution-amendment-gets-presidents-assent-142064

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reservation and subject to a maximum of ten per cent. of the posts in each category.".
15

2.3. Economically weaker sections

"Economically weaker sections" for the purposes of Articles 15 and 16 mean such sections as
notified by the State from time to time on the basis of family income and other indicators of
economic disadvantage. This will be a class distinct from the already specified classes of SCs,
STs and socially and educationally backward classes. The amendment reads as-

Explanation.—For the purposes of this article and article 16, "economically weaker
sections" shall be such as may be notified by the State from time to time on the basis of
16
family income and other indicators of economic disadvantage.’.

2.4. Implementation of the Act

Gujarat Chief Minister Vijay Rupani announced that Gujarat would implement the 10%
17
reservation policy beginning 14 January 2019, becoming the first state to implement the law.
Telangana Chief Secretary S.K. Joshi said on 14 January that the state would also implement the
Amendment, but would consider making some changes that differ with the Amendment.
Maharashtra Cabinet Approves 10% Quota For Economically Weaker Sections in General
18
Category.

rd
3. Drawbacks of the 103 Constitutional Amendment

Within hours of the bill passing the Rajya Sabha, non-governmental organization Youth For Equality
filed a PIL challenging the Bill in the Supreme Court. The NGO argues that the Bill violates the basic
structure of the Constitution which they claim does not permit reservation based on economic factors.
They also argue that a previous Supreme Court judgement had fixed the

15 Ibid.
16 Ibid.
17 Dr. Ankit Shrivastava, 10% quota to be implemented in Gujarat from Monday, NEW DELHI TIMES, (Mar. 17, 2019,
5:46 PM), https://www.newdelhitimes.com/10-quota-to-be-implemented-in-gujarat-from-monday/
18 Zee News, Gujarat set to become first state to implement new 10% quota law, ZEE NEWS, (Mar. 17, 2019,
5:42 PM), https://www.youtube.com/watch?v=FrfxeJqaOTo

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19
maximum reservation allowed under all quotas at 50%. Referring to the nine judges bench
20
decision of the Supreme Court in Indira Sawhney case (1992), the petition states that
reservation cannot be given on the basis of economic criteria.

The 103rd Amendment raises the total reservation quota to 59.5%. The DMK filed a motion in
the Madras High Court challenging the Amendment on 18 January 2018. The party argues that
reservations should be based on the community to which an individual belongs and not their
21
economic status.

On 10 March 2019, a Supreme Court bench headed by Chief Justice Ranjan Gogoi declined to
pass a stay on the Amendment, but agreed to hear the petitions challenging the Amendment on
28 March. The bench also stated that it would determine whether the matter should be considered
22
by a larger constitution bench on the same date.

3.1. A Political Move

A number of academicians, jurists, scholars, etc. have argued that the economic reservation is a
political move. The total reservation which exists in India is 49.5% and this additional 10% will
raise the figure to 59.5%, thus, violating the Supreme Court’s 50% reservation cap that it had
23
imposed in Indira Sawhney v Union of India . That is why this move was followed by the
124th constitutional amendment which puts this reservation in the Ninth Schedule to protect it
from judicial scrutiny.

Some argue that the government is trying to do everything possible under the Sun to put itself in
power, again, in the upcoming 2019 election after suffering three major defeats to Congress in

19
The Times of India, Bill for 10% reservation for poor in general category challenged in SC, THE TIMES OF INDIA..
(Mar. 23, 2019, 6:32 PM), https://timesofindia.indiatimes.com/india/bill-for-10-reservation-for-poor-in-general-
category-challenged-in-sc/articleshow/67470805.cms
20 Indira Sawhney & Ors v. Union of India, AIR 1993 SC 477
21 Vaitheesvaran, Bharani, DMK moves Madras High Court against reservation amendment, THE ECONOMIC
TIMES, (Mar. 17, 2019, 5:22 PM), https://economictimes.indiatimes.com/news/politics-and-nation/dmk-moves-
madras-high-court-against-reservation-amendment/articleshow/67587886.cms
22 Borkar Shubham, Rani Neha, 103rd Constitutional Amendment Act, 2018 "Economic Reservation In India"
Highlights And Analysis, (Mar. 23, 2019, 5:22 PM), MONDAQ,
http://www.mondaq.com/india/x/773144/Constitutional+Administrative+Law/103rd+Constitutional+Amendment+
Act+2018+Economic+Reservation+in+India+Highlights+and+Analysis
23 Indira Sawhney & Ors v. Union of India, AIR 1993 SC 477

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State elections. Surprisingly, BJP had 4 years and 8 months but they were reminded of the
24
“economically suffering upper castes” just before the elections.

3.2. Another caste reservation?

Some scholars argue that leaving aside the timing of the bill, the Union is also trying to
circumvent this reservation under the head of “economic” reservation and trying to get away
from the Supreme Court’s bar on not allowing more than 50% “social” reservations based on
caste. However, if we analyse the reservation, it is not just based on economic reservation but
also on giving economic reservation to a segregated portion of the general category (or the
“upper caste”), which again puts it under the same social reservation head, thereby drawing upon
itself the curtains of judicial scrutiny. Had the intention of the government been to give uplift the
economically downtrodden, it could have brought in a caste neutral reservation granting
economic reservation to all in an equal manner, but that wouldn’t have helped BJP to gain the
requisite number of votes it wanted to collect from the “upper castes”. Yet another example of
25
how caste plays the major role in determining our leaders.

3.3. Secured vote bank

Apart from the abovementioned arguments, some argue that government has not included that
said 10% within 50 percent cap due to the reason that it didn’t wanted its vote bank to be
shattered. They argue that it is not a move for the public but rather another election gimmick to
gain votes from one specific caste, which has been happening in India since Independence. These
26
are just political shams engineered under the garb of public policy.

3.4. Detrimental to merit

rd
Another argument in favour of the 103 Constitutional Amendment is that the reservation bar to
59.5% is again a detriment to merit. Instead of motivating and encouraging meritorious
students/scholars, the government is hell bent to not even let them get decent jobs by going on

24 Harsh, The Economic Reservation Bill: A Political sham under the garb of Public Policy, LEGAL SERVICE
INDIA, (Mar. 27, 2019, 7:32 PM), http://www.legalserviceindia.com/legal/article-464-the-economic-reservation-bill-
a-political-sham-under-the-garb-of-public-policy.html
25 Amartya Sen, 10 per cent general category reservation is muddled thinking, may have serious political,
economic impact, INDIA TODAY, (Mar. 29, 2019, 6:15 PM), https://www.indiatoday.in/india/story/10-per-cent-general-
category-reservation-is-muddled-thinking-may-have-serious-political-economic-impact-amartya-sen-1427548-2019-01-
10.
26 Ibid.

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increasing the % of reservation. Amartya Sen therefore stated that- "If the whole of the
27
population is covered by reservation then that would be removal of reservation,".

3.5. Is the 103rd Amendment Unconstitutional?

It is trite – but nonetheless important – to recall that, as the Constitution stands amended, the
only constitutional challenge that remains is a basic structure challenge. It is also worthwhile to
remember – in order to set the context – of how high a threshold that is. Contrary to the beliefs of
basic structure critics, who see the doctrine as some kind of Damocles Sword that errant judges
are always threatening to drop upon the neck of democracy, the Supreme Court has almost never
used basic structure to invalidate constitutional amendments. The high-profile striking down of
the NJAC notwithstanding, in the forty-five years since Kesavananda Bharati, the doctrine has
been used on an average of once in a decade. And in the seventy-four constitutional amendments
after Kesavananda, only five have been struck down on substantive basic structure grounds (a
strike rate of around 7%).

Three features that (in my view) can form the basis for a potentially credible basic structure
challenge. The first is the “50% question.” The second is (what seems to be) the use of family
income as the primary determinant of economic disadvantage. The third is potential arbitrariness.

1. The 50% Rule

It has become almost an article of faith that reservations cannot cross the threshold of 50%. The
28
roots of this stipulation lie in M.R. Balaji v State of Mysore , where the Supreme Court held
that because Article 16(4) (reservations) was framed as an exception to Article 16(1) (equality of
opportunity), anything more than 50% would imply that the exception was swallowing up the
29
rule. In Indra Sawhney v Union of India , this judicial rule was affirmed once again, and a
governmental notification providing for 10% reservations on the basis of economic disadvantage
was struck down.
However, neither Balaji nor Sawhney were concerned with the basic structure: they were
considering a law and subordinate legislation, respectively.

27 Ibid.
28 M.R Balaji v. State of Mysore, 1963 AIR 649.
29 Indra Sawhney v. Union of India, AIR 1993 SC 477.

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So, is the 50% rule a part of the basic structure?

30
In Nagaraj , the Court suggested that it is, when it noted that:
” … the ceiling-limit of 50%, the concept of creamy layer and the compelling
reasons, namely, backwardness, inadequacy of representation and overall
administrative efficiency are all constitutional requirements without which the
structure of equality of opportunity in Article 16 would collapse.”

But is there any support for this observation? The only indication that the 50% limit is so crucial
that it is to be deemed as inherent in the very “structure of equality of opportunity” is found in a
speech by Dr. B.R. Ambedkar during the Constituent Assembly Debates in November 1948.
Ambedkar observed that the purpose of Article 16 was to balance two competing principles –
(formal) equality of opportunity, and compensation for inadequate representation in public
employment. This balance was wrought by structuring Article 16 as it was (through 16(1) and
16(4)), and one example that Ambedkar specifically took to indicate what might upset this
balance was a potential situation in which the quantum of reservation reached 70%. There is,
therefore, strong evidence to suggest that the 50% rule is baked into the scheme of Article 16, as
its drafters intended.
However, it does not follow from that that an amendment to Article 16 that changes this scheme
would be a basic structure violation. This is for two reasons. The first is that the basic structure is not
reducible to a particular, concrete articulation of values, internal to a specific constitutional provision.
It is open to Parliament – acting in its constituent capacity – to depart from the constitutional
settlement that the framers encoded into Article 16. Parliament is entitled to believe that the social
justice facet of 16 deserves greater importance than formal equality of opportunity, and to act upon
that belief. Secondly – and more importantly – the “balancing” view of Article 16 is not even the
31
only reasonable interpretation available. In N.M. Thomas , for example, a majority of four judges
out of seven held that Article 16(4) is not an exception to 16(1), but a facet of it; in other words,
16(4) merely expresses, in explicit terms, a commitment to equality in terms of social justice that is
already present in Article 16(1). Under this view, it is obvious that the 50% rule has no foundation, as
that was predicated on 16(4) being an exception to 16(1).

30 M. Nagraj & Ors v. Union of India and Ors. AIR 2007 SC 71.
31 State Of Kerala & Anr v. N. M. Thomas & Ors., 1976 SCR (1) 906.

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The point is that it is a legitimate interpretation of Article 16, that has been affirmed by a seven-
judge bench of the Court, and which has never – technically – been overruled. Consequently, it is
certainly open to Parliament to take that view, and amend Article 16 to reflect that.
Lastly, the 103rd Amendment commits Parliament to increasing the quantum of reservation
above 50%. The Amendment only provides reservation to the extent of 10%; however, existing
Articles 15(4), 15(5), and 16(4) do not stipulate that existing reservations must necessarily be at
50% – that has been achieved through legislation. Consequently, how can a basic structure
challenge to the Amendment even raise the 50% argument? That argument – if it has to be raised
at all – must come in when Parliament enacts a law to give effect to the Amendment.

2. Individuals and Groups

This is a more persuasive basic structure argument against the Amendment. There is one feature
that distinguishes the Amendment from the rest of the scheme of Articles 15 and 16: by using the
“family income” as the primary determinant of economic disadvantage, the Amendment
advances a philosophy of reservation that focuses on remedying individual disadvantage (by
taking the family as the unit for determining who is disadvantaged).

At a very fundamental level, this departs from the kind of equality that the Equality Code (Articles
32
14, 15, and 16) envisages. The scheme of Articles 14, 15 and 16 is one that acknowledges the
historical fact that in India, group membership has been the primary basis of institutional and
structural disadvantage. One’s access to opportunity and chances of social and economic mobility
have been mediated by one’s group identity – and primary, that identity has been structured around
caste. The logic of reservation in India – and this dates back to pre-Independence times – has,
consequently, always been that while the right to equality is an individual right, the only method of
achieving substantive equality at an individual level is to take into account the disadvantages and
barriers that exist on account of groups (and specifically, caste groups).

As a variant of this argument, Madhav Khosla has argued that the reason why the 103rd
Amendment must fail the basic structure test is because it essentially contains internally

32 Gautam Bhatia, Is the 103rd Amendment Unconstitutional?, Indian Constitutional Law and Philosophy, INDIAN
CONSTITUTIONAL LAW AND PHILOSOPHY, (Mar. 26, 2019, 5:21 PM),
https://indconlawphil.wordpress.com/2019/01/13/is-the-103rd-amendment-unconstitutional/.

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contradictory provisions: the logic of 15(4), (5) and 16(4) (group-determined, social and
educational backwardness) is at war with the logic of the new Articles 15(6) and 16(6).

3. Arbitrariness

One last possible attack is on the grounds of arbitrariness – that is, the family income criteria has
no relation with the goal of reservation. In other words – as many people have pointed out –
reservation is not the remedy to the problem of poverty (reservation is about compensating for
social and institutional barriers to representation). This makes mandating reservation on
economic disadvantage arbitrary.
This raises a fascinating constitutional question, which is yet to be resolved: are there specific
articles that are so important and crucial, that they themselves constitute basic features? In
particular, are Articles 14, 19, and 21, standing alone, part of the basic structure, so that a
constitutional amendment can be challenged, like an ordinary law, on the basis that it violates
one of these articles?
The Supreme Court has hinted before that this might be the case; however, I am unpersuaded. It
is one thing to say that if Parliament was to repeal Article 14, or 19, or 21 – taking away equality,
freedom, and liberty altogether – then a basic structure challenge would lie. It is quite another to
say that specific tests under 14, 19, and 21 should apply, mutatis mutandis, to a constitutional
amendment.

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4. Conclusion and Suggestions

As the constitution stands amended, the only constitutional challenge left is conformity to the
basic structure doctrine. So far, it has become an established principle that reservation shall have
33
a cap of 50%. These stipulations first arose in M.R Balaji v. State of Mysore when court stated
that reservation above 50% would imply dominance over section 16(1). The government
notification providing 10% reservation to weaker economic sections of society was struck down
34
in Indra Sawhney v. UOI . However, it is noteworthy that these rulings were given in relation
to a law or subordinate legislation and have never been discarded in violation of Basic Structure
Doctrine. Moreover, the amendment only provides reservation to the extent of 10%. However,
the existing articles 15(4), 15(5) and 16(4) do not mention that reservation shall be 50%
explicitly, by way of legislation. Consequently, any challenge pertaining to violation of basic
structure does not seem to have a stand.

Economic reservation finds its ground in terms of equality. While I agree that the 103rd
amendment has created a logical mess by inclusion of arbticle 15 (6) and 16 (6), it is difficult to
see how economic reservation damages or destroys the concept of equality, and consequently
Basic Structure. Therefore, the fact how equality and social justice is presently understood in
Constitution, shall be no ground for striking it down.

There are powerful legal and constitutional arguments against economic reservation. However,
what the above discussion has shown is that they operate at the level of the law: they would
succeed were it the case that legislation was being tested against the basic structure. However, it
is far more difficult in the case of a constitutional amendment. Ironically, this is because of the
precise reason that has given so much fodder to basic structure critics – the Court’s refusal to
define it in concrete and specific terms. As long as economic reservation is defensible on a
ground that is recognisable in terms of equality, the fact that it departs from how equality and
social justice is presently understood in the Constitution, is no ground for striking it down. And
that minimal threshold, in my view, is met by the 103rd Amendment. It is likely to survive a
basic structure challenge.

33 M.R Balaji v. State of Mysore, 1963 AIR 649.

34 Indra Sawhney v. Union of India, AIR 1993 SC 477.

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ET Explains, What is Constitution (One Hundred And Twenty-Fourth Amendment) Bill,
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LEGISLATIVE.
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Varma, Gyan., Quota bill passed in Lok Sabha with near unanimous vote, LIVEMINT.
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Livemint, Narendra Modi hails passage of quota bill in Lok Sabha, LIVEMINT.
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Money Control, Rajya Sabha approves 10% reservation for poor in general category,

MONEYCONTROL
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News 18, Centre's 10% Quota For Economically Weak From General Category Passes
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President's Assent, LIVELAW.
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Dr. Ankit Shrivastava, 10% quota to be implemented in Gujarat from Monday, NEW
DELHI TIMES.

Zee News, Gujarat set to become first state to implement new 10% quota law, ZEE NEWS.

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THE TIMES OF INDIA.


Vaitheesvaran, Bharani, DMK moves Madras High Court against reservation amendment,
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Reservation In India" Highlights And Analysis, MONDAQ,

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Harsh, The Economic Reservation Bill: A Political sham under the garb of Public Policy,
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Amartya Sen, 10 per cent general category reservation is muddled thinking, may have
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