Defending its decision to introduce a 10 per cent economic quota, the Centre told the Supreme Court that the amendments did not violate the basic structure of the Constitution or the apex court’s 1992 ruling in the Indra Sawhney case, and that the fifty percent ceiling on reservation “is only applicable to reservation made under Article 15(4), 15(5) and 16(4) and does not apply to Article 15(6)”.
- In its affidavit in reply to a petition challenging the Constitutional (103rd Amendment) Act through which the economic criterion was introduced, the government said the move was made following the recommendations of the Commission for Economically Backward Classes, headed by Major General (Retd) S R Sinho.
- The commission was constituted “to suggest the criteria for identification for economically backward classes (EBC) as well as to recommend welfare measures and quantum of reservation in education and Government employment to the extent as appropriate”.
- In its report dated July 2, 2010, the commission recommended that “all BPL (Below Poverty Line) families among general category as notified from time to time, and also all families whose annual family income from all sources is below the taxable limit (as may be revised from time to time) should be identified as EBCs”.
- Also, “keeping in view the differentiation adopted by” the Supreme Court in the Indra Sawhney case between the “weaker sections of the people” and “backward classes of citizens”, the commission “resolved that indicators that were used for the identification of socio-economic backward classes cannot be used for identification of economically backward classes, mainly because, at first place, classes are not homogenous, and secondly, they do not have a common criteria like that of castes, on the basis of which, economic backwardness can be evolved”, the affidavit filed by the Social Justice Ministry said.
- It said that the Sinho Commission “had, on the basis of NSSO (National Sample Survey Office) Estimates, concluded that BPL percentage was not just high among STs, SCs and OBCs, but were also high amongst the General category, being 18.2 per cent”.
- The NSSO (2004-05) and NFHS (National Family Health Survey) (1998-99) data suggest that there is a need to make provisions similar to the backward classes for the economically weaker sections, the affidavit added.
- The commission also stated that “given the existing legal premise that Backward Classes cannot be identified on the basis of economic criteria for the purpose of reservation in employment and admission in educational institutions, the states were unable to identify Economically Backward Classes for extending benefits of reservation till necessary Constitutional Amendment were made or the Supreme Court directs raising the ceiling for reservation beyond 50 per cent”.
- The government said India’s population of 135 crore comprises considerably large sections of the lower- middle class and those living below poverty line, and “the State has a duty as per the directive of Article 46 of the Constitution to promote the educational and economic interests of the weaker sections of the people”.
Violation Basic Structure
- On the argument that the amendments violate the basic structure of the Constitution, the Centre said, “’Basic structure’ comprises many features like several pillars in a foundation.
- The significance of these pillars is that if one of them is removed, the entire edifice of the Constitution will fall. Hence, in judging a constitutional amendment, the question to be addressed is whether the said amendment would lead to a collapse of the edifice of the Constitution.”
- The affidavit said that “merely affecting or impinging upon an article embodying a feature that is part of the basic structure is not sufficient to declare an amendment unconstitutional”, and that “to sustain a challenge against a constitutional amendment, it must be shown that the very identity of the constitution has been altered”.
- Thus, a mere amendment to an Article of the Constitution, even if embodying a basic feature, will not necessarily lead to a violation of the basic feature involved”, it stated.
- The government contended that the “newly inserted provisions of Article 15(6) and Article 16(6) are enabling provisions for advancement of the Economically Weaker Sections, and are, in fact, in conformity with the principle of Reservation and Affirmative action, which are the touchstones of protection of equality of citizens and also the basis under Article 15(1), Article 15(2), Article 16(1) and 16(2). Therefore the impugned Amendment is in conformity with the constitutional principles and therefore does not violate the basic structure doctrine”.
Indra Sawhney vs Union of India case
- The affidavit said that the conclusions drawn in the Indra Sawhney vs Union of India case “are inapplicable to the present case as the said judgment was delivered while determining the constitutional validity of certain Office Memorandums issued by the Government of India in the year 1990, which provided for reservations for the backward classes of citizens in services under the State”, while “the present challenge…is in relation to the validity of a constitutional amendment made wherein Article 15(6) and Article 16(6) have been inserted, which did not exist on the book when Indra Sawhney was delivered.
- The Ministry said that the court, in the Indra Sawhney case, “did not have the opportunity to deliberate or hold in relation to the Constitutional amendment, whereby the new criteria of ‘economically weaker sections of the society’ has been introduced”.
- It stated that “the limit of 50% is only applicable to reservation made under Article 15(4), 15(5) and 16(4) and does not apply to Article 15(6)”, and that the economic quota for EWS has been introduced “without disturbing the existing reservations for SCs, STs and OBCs”.
- On the contention that educational institutions could not be compelled to follow this, it said that “access to Higher Education, including professional education to students belonging to weaker segments of the society, is a matter of major concern, and the number of seats available in aided or Government maintained institutions, is limited in comparison to those in private unaided institutions”.
- Article 46 of the Directive Principles of State Policy calls upon the State to “promote with special care the educational and economic interests of the weaker section of the population and protect them from social injustice”, the government pointed out.
- The affidavit added that private unaided institutions play an important role providing education to over 1.34 crore students in various programmes, and “it is therefore essential that the socially and economically weaker section gets access to these facilities as mandated in the Constitution”.