This article is the first part of a two-part series on the 103rd amendment which provides for a maximum of ten percent reservation to the economically weaker sections of citizens. You may find the second part here.
Through the 103rd Amendment Act, 2019 (hereinafter referred to as “Amendment”), articles 15 and 16 of the Constitution of India stood amended in order to provide for a maximum of ten percent reservation to the economically weaker sections of the citizens in educational institutions as well as public employments respectively. This reservation is in addition to the existing reservation for the SCs/STs/OBCs, and does not disturb this dynamic in any manner. However, hours after the bill was cleared by the Rajya Sabha on 9th January 2019 and before the President of India gave his assent to the same, a petition was moved in the Supreme Court under article 32 terming this bill (which was still, at that moment, not an Act) as being violative of the basic structure of the Constitution of India.
Interestingly and contrary to the debate that surfaced immediately after the passage of this Amendment, any amendment to the Constitution does not have to satisfy any of the provisions of the fundamental rights, or what the Supreme Court has ruled with regard to that provision in the past. All that is required to be satisfied is that it does not offend the basic structure of the Constitution. The jurisprudence on the basic structure has been controversially long and has been subject to multiple debates. This is more because apart from some vague axioms, the Supreme Court left it open as to what would be the constitutive elements of the doctrine.
In the case of economic quota too, now that the state is faced with the question about the constitutional validity of this Amendment (after the Supreme Court issued notice to the Centre on the question of its constitutional validity), its role with regard to answering the concerns about “meaning of backward class” or, “being ultra-vires the Indra Sawhney in terms of breaching the fifty percent marker”, etc. – will be superfluous. While the aspects that the court will have to examine are multiple; however, for the purposes of this article, I would be limiting myself to examine only the basic structure challenge to the Amendment. I will argue here to show that it would rather be a straightforward task for the state to justify how the amendment does not violate the basic structure test, and will sustain the vires set by the jurisprudence of the Court.
The question of 50% rule as the basic feature
Immediately after it was proposed that the Central Government would amend the Constitution to provide for ‘special measures’ for the economically weaker sections, it was vehemently argued how it will be difficult for the new proposal to survive the ‘50% ceiling attack’, which was set years ago. In this regard, we might be tempted to refer back to the origins of the 50% rule, where the Court in MR Balaji had opined that under no circumstance, the state shall breach the limit of 50% while providing for reservations. This was then, when the Court was of the understanding that article 16 (4) was not an extension, but rather an exception to article 16 (1).
The Court in Sawhney, though upheld the limit opined in Balaji, but also upheld the reasoning of the Court in NM Thomas. In Thomas, the majority had reversed the position of Balaji to hold that art 16 (4) was not an exception, but rather a facet of article 16 (1), and thus, furthers equality. At this point, it is crucial to mention that the situation the court faced in Sawhney was completely different from what it may face in the present challenge. In Sawhney, the challenge was to an Office Memorandum (issued by the government) and not to an amendment to the Constitution. Therefore, the question was not of testing the Memorandum on the vires of the basic structure but to test the same on the ordinary provisions of the Constitution (articles 14 and 16, for example).
However, a keen understanding would make it clear that here, a constitutional amendment is in question. The debate would, therefore, begin from a step further; under the supervision of the basic structure of the Constitution. The question that the Amendment would have to answer will be whether this 50% limit (as opined in Balaji and upheld in Sawhney) constitutes a part of the basic structure or not.
This reading is not possible from Sawhney as nowhere throughout the reams of pages constituting the judgment, the Court has held (despite being a nine judge bench and capable of doing so) that the 50% rule is a part of the basic structure of the Constitution, and hence, should not be tinkered with. One of the reasons why the court abstained itself from ruling 50% ceiling as a part of the basic structure could be that the challenge before it was not to an amendment but only to an Office Memorandum. Since the basic structure doctrine could be invoked only when an amendment is in question (not that the Supreme Court has not erred in the past with regard to this. SR Bommai v. Union of India, for example), the court rightly abstained from going into that question. However, even if that is ignored, one possible reason to not to include this numerical ceiling in the basic structure would be the fact that the basic structure doctrine, as per Kesavananda, is supposed to include axioms such as secularism, democracy, equality, etc., and hence, a concretized number/value is not capable to be a part of it.
The story of the precedents
The Court has had rare occasions when it had to decide on the validity of reservation-amendment cases in light of the basic structure doctrine. Since 1973 (when the doctrine was evolved for the first time), the arguments in Youth for Equality (the case challenging the validity of the Amendment) would be only the third instance (after in M Nagaraj and Ashoka Kumar Thakur) that the Court will decide on the validity of a reservation-amendment to the Constitution on the touchstone of the basic structure of the Constitution.
In Nagaraj, a basic structure challenge to articles 16 (4A) and 16 (4B) was rejected by the Supreme Court on the ground that the abstract concept of equality guaranteed by the basic structure was not “damaged or destroyed”. The court opined the width and the identity tests to answer the question. In the ‘width’ test, as per the court, it had to be seen whether the amendment to the Constitution was within the width of power of the Parliament to amend the Constitution. The court held that amid many things that are a part of the ‘width’ of the Parliament’s power, the ceiling limit of 50% (a quantitative number) was not disturbed by the amendment in question. Similarly, the court held that the amendment did not violate the ‘identity’ test as well.
In that context, I find it difficult to reach the conclusion that on reading of paragraphs 102-103 of the judgment, the 50% ceiling limit could be considered to be a part of the basic structure. This is because even though this 50% ceiling, inter alia, has to be satisfied for satisfying the width test; despite this, the court ruled that “none of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned constitutional amendments”. This makes it clear that the basis for the court to rule that the amendments in question were valid was their non-violation of these axioms, and not the non-violation of the 50% ceiling limit.
However, the only possible way to say that the 50% rule too is a part of the basic structure of the Constitution is through a skewed reading of M Nagaraj. There, towards the end of the judgment, the Court had held that the 50% ceiling limit is an essential, constitutive element of art 16, without which, the structure of equality as envisaged through art 16 would collapse. Clearly, for the reasons mentioned in the earlier paragraphs and by adopting a simple reading of what Nagaraj had held, I am not inclined to agree that the 50% rule is a constituent of the basic structure of the Constitution.
On a concluding note, while the [non]threat of the 50% limit is interesting to note, the court in Indra Sawhney, towards the end of the judgment tweaked (and hence, left unclear) even that rule as well. In paragraphs 766-767, the court said that while 50% should be the rule, it should not exclude certain extraordinary situations when the rule may be altered with. The justification for creating this exception was the “great diversity” that was inherent in the people of this country. Therefore, while the Petitioners might be quick to argue the ceiling limit as a damaging element to the Amendment, the roadblock of exception too would have to be answered by them.
The author wishes to thank Dr Anup Surendranath and Dr Mohsin Alam for their discussion on the basic structure doctrine.